Common use of Gross-Up Provision Clause in Contracts

Gross-Up Provision. (a) If the payments provided by Section 4(a) hereof (the “Agreement Payments”) would be subject to the tax imposed by Section 4999 of the Code (the “Excise Tax”), the Company shall pay to Executive at the time specified in Section 7(b) below an amount (the “Gross-up Payment”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined), and any federal, state and local income tax and Excise Tax upon the Gross-up Payment provided for by this subsection (a) shall be equal to what the Total Payments would have been had the Excise Tax not applied, as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”). For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or benefits received or to be received by Executive in connection with a Change in Control or Executive’s termination of employment (under this Agreement or any other agreement with the Company or any person whose actions result in a Change in Control or any person affiliated with the Company) (which, together with the Agreement Payments, shall constitute the “Total Payments”) shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors such other payments or benefits (in whole or in part) are not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the Total Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the Gross-up Payment, Executive shall be deemed to pay federal, state, and local income taxes at the highest applicable marginal rate for the calendar year in which the Gross-up Payment is to be made net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If the Excise Tax is finally determined to be less than the amount taken into account at the time the Gross-up Payment is made, Executive shall repay the portion attributable to such reduction (plus the portion of the Gross-up Payment attributable to a reduction in Excise Tax and/or a federal and state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of the Code. If the Excise Tax is later determined to exceed the amount taken into account at the time the Gross-up Payment is made, the Company shall make an additional gross-up payment (plus any interest payable with respect to such excess at the rate provided in Section 1274(b)(2)(B) of the Code) when such excess is finally determined. (b) The Gross-up Payment or portion thereof provided for in subsection (a) above shall be paid not later than the 45th day following payment of any amounts under Section 4(a)(i).

Gross-Up Provision. (a) If In the payments provided by Section 4(a) hereof event that any payment and the value of any benefit (the collectively, “Agreement Payments”) ), or any portion thereof, received or to be received by Executive would otherwise be subject to the excise tax imposed by under Section 4999 of the Code (Code, then the “Excise Tax”), Company or the acquiring or successor entity to the Company shall pay to Executive at within ninety (90) days of the time specified in Section 7(b) below date Executive becomes subject to the Excise Tax, an additional amount (the “Excise Tax Gross-up Up Payment”) such that the net amount retained by the Executive, after deduction of (i) any Excise Tax on the Total Payments and (as hereinafter defined), and ii) any federal, state and local income or employment tax and Excise Tax upon the Gross-up Payment payment provided for by this subsection (a) section 3, shall be equal to what the Total Payments, reduced by the amount of any United States federal, state and local income or employment tax liability of the Executive if the Payments would have been had were not subject to the Excise Tax not applied, as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company Tax. (in either case, the “Independent Auditors”). b) For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, : (i) any Any other payments or benefits received or to be received by Executive in connection with transactions contemplated by a Change in Control or Executive’s termination of employment (under whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or any person whose actions result in a Change in Control or any person affiliated with the Company) (which), together with the Agreement Payments, shall constitute the “Total Payments”) shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) 280G of the CodeCode or any similar or successor provision, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code 280G or any similar or successor provision shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors Company such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G (or any similar or successor provision of the Code) in excess of the base amount within the meaning of Section 280G (or any similar or successor provision of the Code), or are otherwise not subject to the Excise Tax, . (ii) the The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (Ai) the Total total amount of the Payments or (Bii) the amount of the excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i), above), and 280G. (iii) the The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors accounting firm that is the Company’s outside auditor at the time of such determination, which firm must be reasonably acceptable to Executive (the “Accounting Firm”) in accordance with the principles of Sections 280G(d)(3) and (4) Section 280G of the Code. . (c) For purposes of determining the amount of the Excise Tax Gross-up Up Payment, Executive shall be deemed to pay federal, state, federal income taxes at the highest marginal rate of federal income 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 applicable marginal rate for of taxation in the calendar year in which state and locality of Executive’s residence on the date the Excise Tax Gross-up Up Payment is to be made made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If . (d) In the event that the Excise Tax is finally subsequently determined to be less than the amount taken into account at the time the Gross-up Payment is madeunder this section 3, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Excise Tax Gross-Up Payment attributable to such reduction (plus the portion of the Excise Tax Gross-up 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 and federal, state and or local income tax deduction), ) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of 1274(b)(2)(B) of the Code. If . (e) In the event that the Excise Tax is later 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 is madeUp Payment), the Company shall make an additional grossExcise Tax Gross-up payment Up Payment in respect of such excess (plus any interest payable with respect to such excess excess) at the rate provided in Section 1274(b)(2)(B) time that the amount of the Code) when such excess is finally determineddetermined in accordance with the principles set forth in this section 3. (bf) The Gross-up Payment or portion thereof provided for in subsection (a) above All determinations required to be made under this section 3 shall be paid not later than made by the 45th day following payment Accounting Firm. The Company shall cause the Accounting Firm to provide detailed supporting calculations of its determinations to the Company and Executive. Notice must be given to the Accounting Firm within fifteen (15) business days after an event entitling Executive to any amounts Payments under this Agreement. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The Accounting Firm’s determinations must be made with substantial authority (within the meaning of Section 4(a)(i6662 of the Code).

Gross-Up Provision. (a) If the payments provided by Section 4(a4(b) hereof ------------------ (the “"Agreement Payments”") would be become subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code as in effect on the date of this Agreement (or any similar tax), Executive will be responsible for the Excise Tax and the Company will not pay Executive an additional amount (the “"Gross-up Payment"). If, however, the "Agreement Payments" become subject to the Excise Tax”)Tax (or any similar tax) by virtue of changes in the Code which occur after the date of this Agreement, the Company shall pay to Executive at the time specified in Section 7(bSubsection (i) below an amount (the “a "Gross-up Payment”) " such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined), and any federal, state and local income tax and Excise Tax upon the Gross-up Payment provided for by this subsection (a) section shall be equal to what the Total Payments would have been had such changes in the Excise Tax Code not applied, as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”)occurred. For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (ia) any other payments or benefits received or to be received by Executive in connection with a Change change in Control control or Executive’s 's termination of employment (under this Agreement or any other agreement with the Company or any person whose actions result in a Change in Control change of control or any person affiliated with the Company) (which, together with the Agreement Payments, shall constitute the “"Total Payments”") shall be treated as “"parachute payments” " within the meaning of Section 280G(b)(2) of the Code, and all “"excess parachute payments” " within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors Company's independent auditors such other payments or benefits (in whole or in part) are not subject to the Excise Tax, (iib) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A1) the Total Payments or (B2) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (ia), above), and (iiic) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the Gross-up Payment, Executive shall be deemed to pay federal, state, and local income taxes at the highest applicable marginal rate for the calendar year in which the Gross-up Payment is to be made net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If the Excise Tax is finally determined to be less than the amount taken into account at the time the Gross-up Payment is made, Executive shall repay the portion attributable to such reduction (plus the portion of the Gross-up Payment attributable to a reduction in Excise Tax and/or a federal and state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of 1274(b)(2)(B) of the Code. If the Excise Tax is later determined to exceed the amount taken into account at the time the Gross-up Payment is made, the Company shall make an additional gross-up payment (plus any interest payable with respect to such excess at the rate provided in Section 1274(b)(2)(B) of the Codecode) when such excess is finally determined. (bi) The Gross-up Payment or portion thereof provided for in subsection (a) above shall be paid not later than the 45th thirtieth day following payment of any amounts under Section 4(a)(i4; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined, but in no event later than the forty-fifth day after payment of any amounts under Section 4. If the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (ii) In the event it shall be determined by the Company's independent auditor that the Agreement Payments would subject Executive to the Excise Tax, it shall also be determined whether a certain reduction in the Agreement Payments would result in an after-tax amount with a greater net present value than would occur without such reduction. If so, the Agreement Payments shall be reduced by the minimum amount necessary to obtain such result.

Gross-Up Provision. Any and all payments made tO Issuer hereunder shall be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, deductions, charges or withholdings of any nature, and all liabilities with respect thereto, excluding taxed imposed on net income of the Issuer and all income and franchise taxes of the United States and any political subdivision thereof imposed on the Issuer (a) all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities are referred to herein as "Taxes"). If the payments provided by Section 4(a) hereof (the “Agreement Payments”) would be subject to the tax imposed by Section 4999 of the Code (the “Excise Tax”), the Company shall pay to Executive at the time specified in Section 7(b) below an amount (the “Gross-up Payment”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined), and any federal, state and local income tax and Excise Tax upon the Gross-up Payment provided for by this subsection (a) Applicant shall be equal required by law to what the Total Payments would have been had the Excise Tax not applied, as determined by the Company’s independent auditors deduct any Taxes from or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”). For purposes of determining whether respect to any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, sum payable hereunder (i) any other payments or benefits received or the sum payable shall be increased as may be necessary to be received by Executive in connection with a Change in Control or Executive’s termination of employment that after making all required deductions (including deductions applicable to additional sums payable under this Agreement or any other agreement with Section 11, the Company or any person whose actions result in a Change in Control or any person affiliated with the Company) (which, together with the Agreement Payments, Issuer shall constitute the “Total Payments”) shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject receive an amount equal to the Excise Tax, unless in sum the opinion of tax counsel selected by the Independent Auditors such other payments or benefits (in whole or in part) are not subject to the Excise Tax, Issuer would have received had no deductions been made); (ii) the amount of the Total Payments which Applicant shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the Total Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i), above), make all such deductions; and (iii) the value Applicant shall pay the full amount deducted to the relevant taxation authority or other authority in compliance with applicable law. The Applicant shall indemnify the Issuer for the fiull amount of Taxes, (including, without limitation, and Taxes imposed by any non-cash benefits jurisdiction on amounts payable hereunder) paid by the Issuer and any liability (including penalties, interest and expenses) arising therefrom or any deferred payment with respect thereto, whether or benefit not such Taxes were correctly or legally asserted Payment upon this indemnification shall be determined by made within th~y (30) days from the Independent Auditors in accordance with date the principles of Sections 280G(d)(3Issuer makes written demand therefor U ithin th~y (30) and (4) days after date of the Code. For purposes payment of determining the Gross-up Payment, Executive shall be deemed to pay federal, state, and local income taxes at the highest applicable marginal rate for the calendar year in which the Gross-up Payment is to be made net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If the Excise Tax is finally determined to be less than the amount taken into account at the time the Gross-up Payment is made, Executive shall repay the portion attributable to such reduction (plus the portion of the Gross-up Payment attributable to a reduction in Excise Tax and/or a federal and state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of the Code. If the Excise Tax is later determined to exceed the amount taken into account at the time the Gross-up Payment is madeTaxes, the Company Applicant shall make an additional gross-up fumish tO the issuer the original or certified copy of a receipt evidencing payment (plus any interest payable with respect to such excess at the rate provided in Section 1274(b)(2)(B) of the Code) when such excess is finally determined. (b) The Gross-up Payment or portion thereof provided for in subsection (a) above shall be paid not later than the 45th day following payment of any amounts under Section 4(a)(i).thereof

Gross-Up Provision. (a) If In the event that you become entitled to the payments provided by Section 4(aSections 4(iii) hereof (the “"Agreement Payments”) would "), if any of the Agreement Payments will be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (the “Excise Tax”or any similar tax that may hereafter be imposed), the Company shall pay to Executive you at the time specified in Section 7(bSubsection (vii) below an additional amount (the “"Gross-up Payment”") such that the net amount retained by Executiveyou, after deduction of any Excise Tax on the Total Payments (as hereinafter defined), ) and any federal, state and local income tax and Excise Tax upon the Gross-up Payment provided for by this subsection (a) vi), but before deduction for any federal, state or local income tax on the Agreement Payments, shall be equal to what the "Total Payments would have been had the Excise Tax not applied, Payments," as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”)defined below. For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (ia) any other payments or benefits received or to be received by Executive you in connection with a Change change in Control control of the Company or Executive’s your termination of employment (under whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or Company, any person whose actions result in a Change in Control change of control of the Company or any person affiliated with the CompanyCompany or such person) (which, together with the Agreement Payments, shall constitute the “"Total Payments”") shall be treated as “"parachute payments” " within the meaning of Section 280G(b)(2) of the Code, and all “"excess parachute payments” " within the meaning of Section 280G(b)(1280G(b)(l) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors Company's independent auditors such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax, (iib) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A1) the total amount of the Total Payments or (B2) the amount of excess parachute payments within the meaning of Section 280G(b)(1280G(b)(l) of the Code (after applying clause (ia), above), and (iiic) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors Company's independent auditors in accordance with the principles of Sections 280G(d)(3280(G)(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive you shall be deemed to pay federal, state, and local federal income taxes at the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made and the applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If In the event that the Excise Tax is finally subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive you shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-up Payment attributable to such reduction (plus the portion of the Gross-up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the portion of the Gross-up Payment being repaid by you if such repayment results in a reduction in Excise Tax and/or a federal and state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of 1274(b)(2)(B) of the Code. If In the event that the Excise Tax is later determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional gross-up payment in respect of such excess (plus any interest payable with respect to such excess excess) at the rate provided in Section 1274(b)(2)(B) time that the amount of the Code) when such excess is finally determined. (b) The Gross-up Payment or portion thereof provided for in subsection (a) above shall be paid not later than the 45th day following payment of any amounts under Section 4(a)(i).

Gross-Up Provision. (a) If In the event that you become entitled to the payments provided by Section 4(aSections 4(iii) or 5 hereof (the “"Agreement Payments”) would "), if any of the Agreement Payments will be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (the “Excise Tax”or any similar tax that may hereafter be imposed), the Company shall pay to Executive you at the time specified in Section 7(bSubsection (vii) below an additional amount (the “"Gross-up Payment”") such that the net amount retained by Executiveyou, after deduction of any Excise Tax on the Total Payments (as hereinafter defined), ) and any federal, state and local income tax and Excise Tax upon the Gross-up Payment provided for by this subsection (a) vi), but before deduction for any federal, state or local income tax on the Agreement Payments, shall be equal to what the "Total Payments would have been had the Excise Tax not applied, Payments," as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”)defined below. For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (ia) any other payments or benefits received or to be received by Executive you in connection with a Change change in Control control of the Company or Executive’s your termination of employment (under whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or Company, any person whose actions result in a Change in Control change of control of the Company or any person affiliated with the CompanyCompany or such person) (which, together with the Agreement Payments, shall constitute the “"Total Payments”") shall be treated as “"parachute payments” " within the meaning of Section 280G(b)(2) of the Code, and all “"excess parachute payments” " within the meaning of Section 280G(b)(1280G(b)(l) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors Company's independent auditors such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax, (iib) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A1) the total amount of the Total Payments or (B2) the amount of excess parachute payments within the meaning of Section 280G(b)(1280G(b)(l) of the Code (after applying clause (ia), above), and (iiic) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors Company's independent auditors in accordance with the principles of Sections 280G(d)(3280(G)(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive you shall be deemed to pay federal, state, and local federal income taxes at the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made and the applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If In the event that the Excise Tax is finally subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive you shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-up Payment attributable to such reduction (plus the portion of the Gross-up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the portion of the Gross-up Payment being repaid by you if such repayment results in a reduction in Excise Tax and/or a federal and state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of 1274(b)(2)(B) of the Code. If In the event that the Excise Tax is later determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional gross-up payment in respect of such excess (plus any interest payable with respect to such excess excess) at the rate provided in Section 1274(b)(2)(B) time that the amount of the Code) when such excess is finally determined. (b) The Gross-up Payment or portion thereof provided for in subsection (a) above shall be paid not later than the 45th day following payment of any amounts under Section 4(a)(i).

Gross-Up Provision. (a) If In the event that the payments and benefits provided by for in this Agreement (such payments and benefits hereinafter referred to as "Payments") constitute "parachute payments" within the meaning of Section 4(a) hereof 280G of the Internal Revenue Code of 1986, as amended (the “Agreement Payments”) "Code"), would be subject to the 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 to Executive at the time specified in Section 7(b) below an amount (the “Gross-up Payment”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined), and any federal, state and local income tax and Excise Tax upon the Gross-up Payment provided for by this subsection (a) shall be equal to what one time the Total Payments would have been had the Excise Tax not applied, as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company Executive's base salary. (in either case, the “Independent Auditors”). b) For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, : (i) any other payments or benefits received or to be received by Executive in connection with transactions contemplated by a Change in Control or Control, including Executive’s 's termination of employment (under whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or any person whose actions result in a Change in Control or any person affiliated with the Company) (which), together with the Agreement Payments, shall constitute the “Total Payments”) shall be treated as “"parachute payments” " within the meaning of Section 280G(b)(2) 280G of the CodeCode or any similar or successor provision, and all “"excess parachute payments” " within the meaning of Section 280G(b)(1) of the Code 280G or any similar or successor provision shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors 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 280G (or any similar or successor provision of the Code) in excess of the base amount within the meaning of Section 280G (or any similar or successor provision of the Code), or such Payments are otherwise not subject to the Excise Tax, ; (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (Aa) the Total total amount of the Payments or (Bb) the amount of the excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i), above), and 280G; and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined made by the Independent Auditors 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 Sections 280G(d)(3) and (4) Section 280G of the Code. . (c) For purposes of determining the amount of the Excise Tax Gross-up Up Payment, Executive shall be deemed to pay federal, state, federal income taxes at the highest marginal rate of federal income 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 applicable marginal rate for of taxation in the calendar year in which state and locality of Executive's residence on the date the Excise Tax Gross-up Up Payment is to be made made, net of the maximum permissible reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If . (d) In the event that the Excise Tax is finally subsequently determined to be less than the amount taken into account at the time the Gross-up Payment is madeunder this Section 3, Executive shall repay to the Company (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 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 and federal, state and or local income tax deduction), ) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of 1274(b)(2)(B) of the Code. If . (e) In the event that the Excise Tax is later 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 is madeUp Payment), the Company shall make an additional grossExcise Tax Gross-up payment Up Payment in respect of such excess (plus any interest payable with respect to such excess at the rate provided in Section 1274(b)(2)(B) of the Code) when promptly following the time at which the amount of such excess is finally determineddetermined in accordance with the principles set forth in this Section 3. (bf) The Gross-up Payment or portion thereof provided for in subsection (a) above All determinations required to be made under this Section 3 shall be paid not later than made by the 45th day following payment Accounting Firm. The Company shall cause the Accounting Firm to provide detailed supporting calculations of any amounts under its determinations to the Company and Executive. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The Accounting Firm's determinations must be made with substantial authority (within the meaning of Section 4(a)(i6662 of the Code).

Gross-Up Provision. In the event that any payment and the value of any benefit (a) If the payments provided collectively, "Payments"), or any portion thereof, received or to be received by Section 4(a) hereof (the “Executive under this Agreement Payments”) would otherwise be subject to the excise tax imposed by under Section 4999 of the Code (Code, then the “Excise Tax”), Company or the acquiring or successor entity to the Company shall pay to Executive at within ninety (90) days of the time specified in Section 7(b) below date Executive becomes subject to the Excise Tax, an additional amount (the “"Excise Tax Gross-up Up Payment”") such that the net amount retained by the Executive, after deduction of (i) any Excise Tax on the Total Payments and (as hereinafter defined), and ii) any federal, state and local income or employment tax and Excise Tax upon the Gross-up Payment payment provided for by this subsection (a) section 3, shall be equal to what the Total Payments, reduced by the amount of any United States federal, state and local income or employment tax liability of the Executive if the Payments would have been had were not subject to the Excise Tax not applied, as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”)Tax. For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any : Any other payments or benefits received or to be received by Executive in connection with transactions contemplated by a Change in Control or Executive’s 's termination of employment (under whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or any person whose actions result in a Change in Control or any person affiliated with the Company) (which), together with the Agreement Payments, shall constitute the “Total Payments”) shall be treated as “"parachute payments” " within the meaning of Section 280G(b)(2) 280G of the CodeCode or any similar or successor provision, and all “"excess parachute payments” " within the meaning of Section 280G(b)(1) of the Code 280G or any similar or successor provision shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors Company such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G (or any similar or successor provision of the Code) in excess of the base amount within the meaning of Section 280G (or any similar or successor provision of the Code), or are otherwise not subject to the Excise Tax, (ii) the . The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (Ai) the Total total amount of the Payments or (Bii) the amount of the excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i), above), and (iii) the 280G. The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors accounting firm that is the Company's outside auditor at the time of such determination, which firm must be reasonably acceptable to Executive (the "Accounting Firm") in accordance with the principles of Sections 280G(d)(3) and (4) Section 280G of the Code. For purposes of determining the amount of the Excise Tax Gross-up Up Payment, Executive shall be deemed to pay federal, state, federal income taxes at the highest marginal rate of federal income 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 applicable marginal rate for of taxation in the calendar year in which state and locality of Executive's residence on the date the Excise Tax Gross-up Up Payment is to be made made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If In the event that the Excise Tax is finally subsequently determined to be less than the amount taken into account at the time the Gross-up Payment is madeunder this section 3, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Excise Tax Gross-Up Payment attributable to such reduction (plus the portion of the Excise Tax Gross-up 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 and federal, state and or local income tax deduction), ) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of 1274(b)(2)(B) of the Code. If In the event that the Excise Tax is later 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 is madeUp Payment), the Company shall make an additional grossExcise Tax Gross-up payment Up Payment in respect of such excess (plus any interest payable with respect to such excess excess) at the rate provided in Section 1274(b)(2)(B) time that the amount of the Code) when such excess is finally determined. (b) The Gross-up Payment or portion thereof provided for determined in subsection (a) above accordance with the principles set forth in this section 3. All determinations required to be made under this section 3 shall be paid not later than made by the 45th day following payment Accounting Firm. The Company shall cause the Accounting Firm to provide detailed supporting calculations of its determinations to the Company and Executive. Notice must be given to the Accounting Firm within fifteen (15) business days after an event entitling Executive to any amounts Payments under this Agreement. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The Accounting Firm's determinations must be made with substantial authority (within the meaning of Section 4(a)(i6662 of the Code).

Gross-Up Provision. (a) 5.11.1 If at any time or from time to time, it shall be determined by tax counsel mutually agreeable to Company and Employee that any payment or other benefit to Employee on or after the payments provided by Section 4(a) hereof (the “Agreement Payments”) would be subject Control Change Date, whether payable pursuant to the tax imposed by Section 4999 terms of the Code (the “Excise Tax”), the Company shall pay to Executive at the time specified in Section 7(b) below an amount (the “Gross-up Payment”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined), and any federal, state and local income tax and Excise Tax upon the Gross-up Payment provided for by this subsection (a) shall be equal to what the Total Payments would have been had the Excise Tax not applied, as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”). For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or benefits received or to be received by Executive in connection with a Change in Control or Executive’s termination of employment (under this Agreement or any other plan, agreement or arrangement with the Company DST, its successors or any person whose actions result in a Change in of Control of Company (“Potential Parachute Payment”), is or any person affiliated with will become subject to the Company) (which, together with the Agreement Payments, shall constitute the “Total Payments”) shall be treated as “parachute payments” within the meaning of excise tax imposed by Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) 4999 of the Code shall be treated as or any similar tax (“Excise Taxes”), then Company shall, subject to the limitations below, pay or cause to be paid a tax gross-up payment (“Gross-Up Payment”) with respect to all such Excise Tax, unless in Taxes and other taxes on the opinion of tax counsel selected by the Independent Auditors such other payments or benefits (in whole or in part) are not subject Gross-Up Payment. The Gross-Up Payment shall be an amount equal to the Excise Tax, product of (iia) the amount of the Total Payments Excise Taxes multiplied by (b) a fraction (the “Gross-Up Multiple”), the numerator or which shall be treated as subject to is one (1.0), and the Excise Tax shall be equal to denominator of which is one (1.0) minus the lesser of (Ai) the Total Payments sum, expressed as a decimal fraction, of the effective marginal rates of any taxes and any Excise Taxes applicable to the Gross-Up Payment or (Bii) .80, it being intended that the Gross-Up Multiple shall in no event exceed five (5.0). If different rates of tax are applicable to various portions of a Gross-Up Payment, the weighted average of such rates shall be used. Excise Taxes and other penalties under Section 409A of the Code shall not be “any similar tax” for purposes of this Agreement. 5.11.2 To the extent possible, any payments or other benefits to Employee pursuant to this Agreement shall be allocated as consideration for Employee’s entry into the covenants made by him in Paragraph 6. 5.11.3 Notwithstanding any other provisions of this Paragraph 5, if the aggregate After-Tax Amount (as defined below) of the Potential Parachute Payments and Gross-Up Payment that, but for this limitation, would be payable to Employee, does not exceed 120% of After-Tax Floor Amount (as defined below), then no Gross-Up Payment shall be made to Employee and the aggregate amount of excess parachute payments within Potential Parachute Payments payable to Employee shall be reduced (but not below the meaning Floor Amount) to the largest amount which would both (a) not cause any Excise Tax to be payable by Employee and (b) not cause any Potential Parachute Payments to become nondeductible by Company by reason of Section 280G(b)(1) 280G of the Code (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Codesuccessor provision). For purposes of determining the Gross-up Paymentpreceding sentence, Executive Employee shall be deemed to pay federal, state, and local income taxes at be subject to the highest applicable effective after-tax marginal rate for the calendar year in which the Gross-up Payment is to be made net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If the Excise Tax is finally determined to be less than the amount taken into account at the time the Gross-up Payment is made, Executive shall repay the portion attributable to such reduction (plus the portion For purposes of the Gross-up Payment attributable to a reduction in Excise Tax and/or a federal and state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of the Code. If the Excise Tax is later determined to exceed the amount taken into account at the time the Gross-up Payment is made, the Company shall make an additional gross-up payment (plus any interest payable with respect to such excess at the rate provided in Section 1274(b)(2)(B) of the Code) when such excess is finally determined. (b) The Gross-up Payment or portion thereof provided for in subsection (a) above shall be paid not later than the 45th day following payment of any amounts under Section 4(a)(i).this Agreement:

Gross-Up Provision. (a) If In the event that you become entitled to the payments provided by Section 4(aSections 4(iii) hereof (the “"Agreement Payments”) would "), if any of the Agreement Payments will be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (the “Excise Tax”or any similar tax that may hereafter be imposed), the Company shall pay to Executive you at the time specified in Section 7(bSubsection (vii) below an additional amount (the “"Gross-up Payment”") such that the net amount retained by Executiveyou, after deduction of any Excise Tax on the Total Payments (as hereinafter defined), ) and any federal, state and local income tax and Excise Tax upon the Gross-up Payment provided for by this subsection (a) vi), but before deduction for any federal, state or local income tax on the Agreement Payments, shall be equal to what the "Total Payments would have been had the Excise Tax not applied, Payments," as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”)defined below. For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (ia) any other payments or benefits received or to be received by Executive you in connection with a Change change in Control control of the Company or Executive’s your termination of employment (under whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or Company, any person whose actions result in a Change in Control change of control of the Company or any person affiliated with the CompanyCompany or such person) (which, together with the Agreement Payments, shall constitute the “"Total Payments”") shall be treated as “"parachute payments” " within the meaning of Section 280G(b)(2) of the Code, and all “"excess parachute payments” " within the meaning of Section 280G(b)(1280G(b)(l) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors Company's independent auditors such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax, (iib) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A1) the total amount of the Total Payments or (B2) the amount of excess parachute payments within the meaning of Section 280G(b)(1280G(b)(l) of the Code (after applying clause (ia), above), and (iiic) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors Company's independent auditors in accordance with the principles of Sections 280G(d)(3280(G)(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive you shall be deemed to pay federal, state, and local federal income taxes at the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made and the applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross- up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If In the event that the Excise Tax is finally subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive you shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-up Payment attributable to such reduction (plus the portion of the Gross-up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the portion of the Gross-up Payment being repaid by you if such repayment results in a reduction in Excise Tax and/or a federal and state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of 1274(b)(2)(B) of the Code. If In the event that the Excise Tax is later determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional gross-up payment in respect of such excess (plus any interest payable with respect to such excess excess) at the rate provided in Section 1274(b)(2)(B) time that the amount of the Code) when such excess is finally determined. (b) The Gross-up Payment or portion thereof provided for in subsection (a) above shall be paid not later than the 45th day following payment of any amounts under Section 4(a)(i).

Gross-Up Provision. (a) If the payments provided by Section 4(a4(a)(i)-(iv) hereof (the “"Agreement Payments”") would be become subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code as in effect on the date of this Agreement (or any similar tax), Executive will be responsible for the Excise Tax and the Company will not pay Executive an additional amount (the “"Gross-up Payment"). If, however, the "Agreement Payments" become subject to the Excise Tax”)Tax (or any similar tax) by virtue of changes in the Code which occur after the date of this Agreement, the Company shall pay to Executive at the time specified in Section 7(b) below an amount (the “a "Gross-up Payment”) " such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined), and any federal, state and local income tax and Excise Tax upon the Gross-up Payment provided for by this subsection (a) shall be equal to what the Total Payments would have been had such changes in the Excise Tax Code not applied, as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”)occurred. For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or benefits received or to be received by Executive in connection with a Change in Control or Executive’s 's termination of employment (under this Agreement or any other agreement with the Company or any person whose actions result in a Change in of Control or any person affiliated with the Company) (which, together with the Agreement Payments, shall constitute the “"Total Payments”") shall be treated as “"parachute payments” " within the meaning of Section 280G(b)(2) of the Code, and all “"excess parachute payments” " within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors Company's independent auditors such other payments or benefits (in whole or in part) are not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the Total Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the Gross-up Payment, Executive shall be deemed to pay federal, state, and local income taxes at the highest applicable marginal rate for the calendar year in which the Gross-up Payment is to be made net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If the Excise Tax is finally determined to be less than the amount taken into account at the time the Gross-up Payment is made, Executive shall repay the portion attributable to such reduction (plus the portion of the Gross-up Payment attributable to a reduction in Excise Tax and/or a federal and state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of the Code. If the Excise Tax is later determined to exceed the amount taken into account at the time the Gross-up Payment is made, the Company shall make an additional gross-up payment (plus any interest payable with respect to such excess at the rate provided in Section 1274(b)(2)(B) of the Code) when such excess is finally determined. (b) The Gross-up Payment or portion thereof provided for in subsection (a) above shall be paid not later than the 45th thirtieth day following payment of any amounts under Section 4(a)(i); provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined, but in no event later than the forty-fifth day after payment of any amounts under Section 4(a)(i). If the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided for in Section 1274(b)(2)(B) of the Code). (c) In the event it shall be determined by the Company's independent auditors that the Agreement Payments would subject the Executive to the Excise Tax, it shall also be determined whether a reduction in the Agreement Payments would result in an after-tax amount with a greater net present value than would occur without such reduction. If so, the Agreement Payments shall be reduced by the minimum amount necessary to obtain such result. If such reduced payments incorrectly result in an overpayment or underpayment to Executive, the underpayment shall be promptly paid to Executive and, if an overpayment shall have occurred, it shall be treated for all purposes as a loan to Executive by the Company which Executive shall repay on the fifth day after demand by the Company, in each case together with interest at the applicable rate provided for in Section 1274(b)(2)(B) of the Code.

Gross-Up Provision. (a) If the payments provided by Section 4(a4(a)(i)- (iv) hereof (the “"Agreement Payments”") would be become subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code as in effect on the date of this Agreement (or any similar tax), Executive will be responsible for the Excise Tax and the Company will not pay Executive an additional amount (the “"Gross-up Payment"). If, however, the "Agreement Payments" become subject to the Excise Tax”)Tax (or any similar tax) by virtue of changes in the Code which occur after the date of this Agreement, the Company shall pay to Executive at the time specified in Section 7(b) below an amount (the “a "Gross-up Payment”) " such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined), and any federal, state and local income tax and Excise Tax upon the Gross-up Payment provided for by this subsection (a) shall be equal to what the Total Payments would have been had such changes in the Excise Tax Code not applied, as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”)occurred. For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or benefits received or to be received by Executive in connection with a Change in Control or Executive’s 's termination of employment (under this Agreement or any other agreement with the Company or any person whose actions result in a Change in of Control or any person affiliated with the Company) (which, together with the Agreement Payments, shall constitute the “"Total Payments”") shall be treated as “"parachute payments” " within the meaning of Section 280G(b)(2) of the Code, and all “"excess parachute payments” " within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors Company's independent auditors such other payments or benefits (in whole or in part) are not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the Total Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the Gross-up Payment, Executive shall be deemed to pay federal, state, and local income taxes at the highest applicable marginal rate for the calendar year in which the Gross-up Payment is to be made net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If the Excise Tax is finally determined to be less than the amount taken into account at the time the Gross-Gross- up Payment is made, Executive shall repay the portion attributable to such reduction (plus the portion of the Gross-up Payment attributable to a reduction in Excise Tax and/or a federal and state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of the Code. If the Excise Tax is later determined to exceed the amount taken into account at the time the Gross-up Payment is made, the Company shall make an additional gross-up payment (plus any interest payable with respect to such excess at the rate provided in Section 1274(b)(2)(B) of the Code) when such excess is finally determined. (b) The Gross-up Payment or portion thereof provided for in subsection (a) above shall be paid not later than the 45th thirtieth day following payment of any amounts under Section 4(a)(i); provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined, but in no event later than the forty-fifth day after payment of any amounts under Section 4(a)(i). If the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided for in Section 1274(b)(2)(B) of the Code). (c) In the event it shall be determined by the Company's independent auditors that the Agreement Payments would subject the Executive to the Excise Tax, it shall also be determined whether a reduction in the Agreement Payments would result in an after-tax amount with a greater net present value than would occur without such reduction. If so, the Agreement Payments shall be reduced by the minimum amount necessary to obtain such result. If such reduced payments incorrectly result in an overpayment or underpayment to Executive, the underpayment shall be promptly paid to Executive and, if an overpayment shall have occurred, it shall be treated for all purposes as a loan to Executive by the Company which Executive shall repay on the fifth day after demand by the Company, in each case together with interest at the applicable rate provided for in Section 1274(b)(2)(B) of the Code.

Gross-Up Provision. Any and all payments made to issuer hereunder shall be made free and clear of, and without deduction or withholding for any present or future taxes, levies, imposts, deductions, charges or withholdings of any nature, and all liabilities with respect thereto, excluding taxed imposed on net income of the issuer and all income and franchise taxes of the United States and any political subdivision thereof imposed on the issuer (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities are referred to herein as taxes) if the Applicant shall be required by law to deduct any Taxes from or in respect to any sum payable hereunder (I) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 11, the issuer shall receive an amount equal to the sum the issuer would have received and no deductions been made): (a) If the payments provided by Section 4(a) hereof (the “Agreement Payments”) would be subject to the tax imposed by Section 4999 of the Code (the “Excise Tax”), the Company shall pay to Executive at the time specified in Section 7(b) below an amount (the “Gross-up Payment”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined), and any federal, state and local income tax and Excise Tax upon the Gross-up Payment provided for by this subsection (a) shall be equal to what the Total Payments would have been had the Excise Tax not applied, as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”). For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or benefits received or to be received by Executive in connection with a Change in Control or Executive’s termination of employment (under this Agreement or any other agreement with the Company or any person whose actions result in a Change in Control or any person affiliated with the Company) (which, together with the Agreement Payments, shall constitute the “Total Payments”) shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors such other payments or benefits (in whole or in part) are not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the Total Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the Gross-up Payment, Executive shall be deemed to pay federal, state, and local income taxes at the highest applicable marginal rate for the calendar year in which the Gross-up Payment is to be made net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If the Excise Tax is finally determined to be less than the amount taken into account at the time the Gross-up Payment is made, Executive shall repay the portion attributable to such reduction (plus the portion of the Gross-up Payment attributable to a reduction in Excise Tax and/or a federal and state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of the Code. If the Excise Tax is later determined to exceed the amount taken into account at the time the Gross-up Payment is made, the Company Applicant shall make an additional gross-up payment (plus any interest payable with respect to as such excess at the rate provided in Section 1274(b)(2)(B) of the Code) when such excess is finally determined. deductions and (b) the Applicant shall pay the full amount deducted to the relevant taxation authority or other authority in compliance with applicable law. The Gross-up Applicant shall indemnify the issuer for the full amount of Taxes (including without limitation and Taxes imposed by any jurisdiction on amounts payable hereunder) paid by the issuer and any party (including penalties, interest and expenses) arising therefrom or with respect thereto whether or not such Taxes were correctly or legally asserted. Payment or portion thereof provided for in subsection (a) above upon this indemnification shall be paid not later than made within thirty (30) days from the 45th day following date the issuer makes written demand therefor. Within thirty (30) days after date of the payment of any amounts under Section 4(a)(i)Taxes the Applicant shall furnish to the issuer the original or certified copy of a receipt evidencing payment thereof.

Gross-Up Provision. (a) If In the payments provided by Section 4(a) hereof event that any payment and the value of any benefit (the collectively, “Agreement Payments”) ), or any portion thereof, received or to be received by Executive would otherwise be subject to the excise tax imposed by under Section 4999 of the Code (Code, then the “Excise Tax”), Company or the acquiring or successor entity to the Company shall pay to Executive at within ninety (90) days of the time specified in Section 7(b) below date Executive becomes subject to the Excise Tax, an additional amount (the “Excise Tax Gross-up Up Payment”) such that the net amount retained by the Executive, after deduction of (i) any Excise Tax on the Total Payments and (as hereinafter defined), and ii) any federal, state and local income or employment tax and Excise Tax upon the Gross-up Payment payment provided for by this subsection (a) section 3, shall be equal to what the Total Payments would have been had the Excise Tax not appliedPayments, as determined reduced by the Company’s independent auditors amount of any United States federal, state and local income or another nationally recognized public accounting firm selected by employment tax liability of the Company Executive if the Payments were not subject to Excise Tax. (in either case, the “Independent Auditors”). b) For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, : (i) any Any other payments or benefits received or to be received by Executive in connection with transactions contemplated by a Change in Control or Executive’s termination of employment (under whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or any person whose actions result in a Change in Control or any person affiliated with the Company) (which), together with the Agreement Payments, shall constitute the “Total Payments”) shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) 280G of the CodeCode or any similar or successor provision, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code 280G or any similar or successor provision shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors 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 280G (or any similar or successor provision of the Code) in excess of the base amount within the meaning of Section 280G (or any similar or successor provision of the Code), or such Payments are otherwise not subject to the Excise Tax, ; (ii) the The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (Ai) the Total total amount of the Payments or (Bii) the amount of the excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i), above), and 280G; and (iii) the The value of any non-cash benefits or any deferred payment or benefit shall be determined made by the Independent Auditors accounting firm that is the Company’s outside auditor at the time of such determination, which firm must be reasonably acceptable to Executive (the “Accounting Firm”) in accordance with the principles of Sections 280G(d)(3) and (4) Section 280G of the Code. . (c) For purposes of determining the amount of the Excise Tax Gross-up Up Payment, Executive shall be deemed to pay federal, state, federal income taxes at the highest marginal rate of federal income 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 applicable marginal rate for of taxation in the calendar year in which state and locality of Executive’s residence on the date the Excise Tax Gross-up Up Payment is to be made made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If . (d) In the event that the Excise Tax is finally subsequently determined to be less than the amount taken into account at the time the Gross-up Payment is madeunder this section 3, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Excise Tax Gross-Up Payment attributable to such reduction (plus the portion of the Excise Tax Gross-up 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 and federal, state and or local income tax deduction), ) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of 1274(b)(2)(B) of the Code. If . (e) In the event that the Excise Tax is later 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 is madeUp Payment), the Company shall make an additional grossExcise Tax Gross-up payment Up Payment in respect of such excess (plus any interest payable with respect to such excess excess) at the rate provided in Section 1274(b)(2)(B) time that the amount of the Code) when such excess is finally determineddetermined in accordance with the principles set forth in this section 3. (bf) The Gross-up Payment or portion thereof provided for in subsection (a) above All determinations required to be made under this Section 3 shall be paid not later than made by the 45th day following payment Accounting Firm. The Company shall cause the Accounting Firm to provide detailed supporting calculations of its determinations to the Company and Executive. Notice must be given to the Accounting Firm within fifteen (15) business days after an event entitling Executive to any amounts Payments under this Agreement. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The Accounting Firm’s determinations must be made with substantial authority (within the meaning of Section 4(a)(i6662 of the Code).

Gross-Up Provision. (a) If In the payments provided by Section 4(a) hereof event that any payment and the value of any benefit (the collectively, “Agreement Payments”) ), or any portion thereof, received or to be received by Executive would otherwise be subject to the excise tax imposed by under Section 4999 of the Code (Code, then the “Excise Tax”), Company or the acquiring or successor entity to the Company shall pay to Executive at within ninety (90) days of the time specified in Section 7(b) below date Executive becomes subject to the Excise Tax, an additional amount (the “Excise Tax Gross-up Up Payment”) such that the net amount retained by the Executive, after deduction of (i) any Excise Tax on the Total Payments and (as hereinafter defined), and ii) any federal, state and local income or employment tax and Excise Tax upon the Gross-up Payment payment provided for by this subsection (a) section 3, shall be equal to what the Total Payments, reduced by the amount of any United States federal, state and local income or employment tax liability of the Executive if the Payments would have been had were not subject to the Excise Tax not applied, as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company Tax. (in either case, the “Independent Auditors”). b) For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, : (i) any Any other payments or benefits received or to be received by Executive in connection with transactions contemplated by a Change in Control or Executive’s termination of employment (under whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or any person whose actions result in a Change in Control or any person affiliated with the Company) (which), together with the Agreement Payments, shall constitute the “Total Payments”) shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) 280G of the CodeCode or any similar or successor provision, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code 280G or any similar or successor provision shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors Company such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G (or any similar or successor provision of the Code) in excess of the base amount within the meaning of Section 280G (or any similar or successor provision of the Code), or are otherwise not subject to the Excise Tax, . (ii) the The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (Ai) the Total total amount of the Payments or (Bii) the amount of the excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i), above), and 280G. (iii) the The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors accounting firm that is the Company’s outside auditor at the time of such determination, which firm must be reasonably acceptable to Executive (the “Accounting Firm”) in accordance with the principles of Sections 280G(d)(3) and (4) Section 280G of the Code. . (c) For purposes of determining the amount of the Excise Tax Gross-up Up Payment, Executive shall be deemed to pay federal, state, federal income taxes at the highest marginal rate of federal income 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 applicable marginal rate for of taxation in the calendar year in which state and locality of Executive’s residence on the date the Excise Tax Gross-up Up Payment is to be made made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If . (d) In the event that the Excise Tax is finally subsequently determined to be less than the amount taken into account at the time the Gross-up Payment is madeunder this section 3, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Excise Tax Gross-Up Payment attributable to such reduction (plus the portion of the Excise Tax Gross-up 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 and federal, state and or local income tax deduction), ) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of 1274(b)(2)(B) of the Code. If . (e) In the event that the Excise Tax is later 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 is madeUp Payment), the Company shall make an additional grossExcise Tax Gross-up payment Up Change of Control Agreement October 27, 2003 Payment in respect of such excess (plus any interest payable with respect to such excess excess) at the rate provided in Section 1274(b)(2)(B) time that the amount of the Code) when such excess is finally determineddetermined in accordance with the principles set forth in this section 3. (bf) The Gross-up Payment or portion thereof provided for in subsection (a) above All determinations required to be made under this section 3 shall be paid not later than made by the 45th day following payment Accounting Firm. The Company shall cause the Accounting Firm to provide detailed supporting calculations of its determinations to the Company and Executive. Notice must be given to the Accounting Firm within fifteen (15) business days after an event entitling Executive to any amounts Payments under this Agreement. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The Accounting Firm’s determinations must be made with substantial authority (within the meaning of Section 4(a)(i6662 of the Code).

Gross-Up Provision. (a) If In the payments provided by Section 4(a) hereof event that any payment and the value of any benefit (the collectively, “Agreement Payments”) ), or any portion thereof, received or to be received by Executive would otherwise be subject to the excise tax imposed by under Section 4999 of the Code (Code, then the “Excise Tax”), Company or the acquiring or successor entity to the Company shall pay to Executive at within ninety (90) days of the time specified in Section 7(b) below date Executive becomes subject to the Excise Tax, an additional amount (the “Excise Tax Gross-up Up Payment”) such that the net amount retained by the Executive, after deduction of (i) any Excise Tax on the Total Payments and (as hereinafter defined), and ii) any federal, state and local income or employment tax and Excise Tax upon the Gross-up Payment payment provided for by this subsection (a) section 3, shall be equal to what the Total Payments, reduced by the amount of any United States federal, state and local income or employment tax liability of the Executive if the Payments would have been had were not subject to the Excise Tax not applied, as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company Tax. (in either case, the “Independent Auditors”). b) For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, : (i) any Any other payments or benefits received or to be received by Executive in connection with transactions contemplated by a Change in Control or Executive’s termination of employment (under whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or any person whose actions result in a Change in Control or any person affiliated with the Company) (which), together with the Agreement Payments, shall constitute the “Total Payments”) shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) 280G of the CodeCode or any similar or successor provision, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors such other payments or benefits (in whole or in part) are not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the Total Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i), above), and (iii) the value of any non-cash benefits 280G or any deferred payment similar or benefit shall be determined by the Independent Auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the Gross-up Payment, Executive shall be deemed to pay federal, state, and local income taxes at the highest applicable marginal rate for the calendar year in which the Gross-up Payment is to be made net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If the Excise Tax is finally determined to be less than the amount taken into account at the time the Gross-up Payment is made, Executive shall repay the portion attributable to such reduction (plus the portion of the Gross-up Payment attributable to a reduction in Excise Tax and/or a federal and state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of the Code. If the Excise Tax is later determined to exceed the amount taken into account at the time the Gross-up Payment is made, the Company shall make an additional gross-up payment (plus any interest payable with respect to such excess at the rate provided in Section 1274(b)(2)(B) of the Code) when such excess is finally determined. (b) The Gross-up Payment or portion thereof provided for in subsection (a) above shall be paid not later than the 45th day following payment of any amounts under Section 4(a)(i).successor provision

Gross-Up Provision. (a) If In the payments provided event that any payment and the value of any benefit (collectively, "Payments"), or any portion thereof, received or to be received by Section 4(a) hereof (the “Agreement Payments”) Executive would otherwise be subject to the excise tax imposed by under Section 4999 of the Code (Code, then the “Excise Tax”), Company or the acquiring or successor entity to the Company shall pay to Executive at within ninety (90) days of the time specified in Section 7(b) below date Executive becomes subject to the Excise Tax, an additional amount (the “"Excise Tax Gross-up Up Payment”") such that the net amount retained by the Executive, after deduction of (i) any Excise Tax on the Total Payments and (as hereinafter defined), and ii) any federal, state and local income or employment tax and Excise Tax upon the Gross-up Payment payment provided for by this subsection (a) section 3, shall be equal to what the Total Payments, reduced by the amount of any United States federal, state and local income or employment tax liability of the Executive if the Payments would have been had were not subject to the Excise Tax not applied, as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company Tax. (in either case, the “Independent Auditors”). b) For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, Tax:= (i) any Any other payments or benefits received or to be received by Executive in connection with transactions contemplated by a Change in Control or Executive’s 's termination of employment (under whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or any person whose actions result in a Change in Control or any person affiliated with the Company) (which), together with the Agreement Payments, shall constitute the “Total Payments”) shall be treated as “"parachute payments” " within the meaning of Section 280G(b)(2) 280G of the CodeCode or any similar or successor provision, and all “"excess parachute payments” " within the meaning of Section 280G(b)(1) of the Code 280G or any similar or successor provision shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors Company such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G (or any similar or successor provision of the Code) in excess of the base amount within the meaning of Section 280G (or any similar or successor provision of the Code), or are otherwise not subject to the Excise Tax, . (ii) the The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (Ai) the Total total amount of the Payments or (Bii) the amount of the excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i), above), and 280G. (iii) the The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors accounting firm that is the Company's outside auditor at the time of such determination, which firm must be reasonably acceptable to Executive (the "Accounting Firm") in accordance with the principles of Sections 280G(d)(3) and (4) Section 280G of the Code. . (c) For purposes of determining the amount of the Excise Tax Gross-up Up Payment, Executive shall be deemed to pay federal, state, federal income taxes at the highest marginal rate of federal income 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 applicable marginal rate for of taxation in the calendar year in which state and locality of Executive's residence on the date the Excise Tax Gross-up Up Payment is to be made made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If . (d) In the event that the Excise Tax is finally subsequently determined to be less than the amount taken into account at the time the Gross-up Payment is madeunder this section 3, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Excise Tax Gross-Up Payment attributable to such reduction (plus the portion of the Excise Tax Gross-up 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 and federal, state and or local income tax deduction), ) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of 1274(b)(2)(B) of the Code. If . (e) In the event that the Excise Tax is later 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 is madeUp Payment), the Company shall make an additional grossExcise Tax Gross-up payment Up Payment in respect of such excess (plus any interest payable with respect to such excess excess) at the rate provided in Section 1274(b)(2)(B) time that the amount of the Code) when such excess is finally determineddetermined in accordance with the principles set forth in this section 3. (bf) The Gross-up Payment or portion thereof provided for in subsection (a) above All determinations required to be made under this section 3 shall be paid not later than made by the 45th day following payment Accounting Firm. The Company shall cause the Accounting Firm to provide detailed supporting calculations of its determinations to the Company and Executive. Notice must be given to the Accounting Firm within fifteen (15) business days after an event entitling Executive to any amounts Payments under this Agreement. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The Accounting Firm's determinations must be made with substantial authority (within the meaning of Section 4(a)(i6662 of the Code).