Common use of Gross-Up Clause in Contracts

Gross-Up. Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with (A) the Company, (B) any Person (as defined in Section 4(e))whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called the "Total Payments") would be subject (in whole or part) to the tax (the "Excise Tax") imposed under section 4999 of the Code, the Company shall pay to the Executive such additional amounts (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date on which the Gross-Up Payment is calculated for purposes of this section, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Gross-Up. Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with (A) the Company, (B) any Person (as defined in Section 4(e))whose whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Person) (all such payments and benefits, including the Change in Control Severance Payments, being hereinafter called the "Total Payments") would be subject (in whole or part) to the tax (the "Excise Tax") imposed under section 4999 of the Code, the Company shall pay to the Executive such additional amounts (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date on which the Gross-Up Payment is calculated for purposes of this section, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Gross-Up. Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (whether pursuant to Employee or the terms acceleration of this Agreement any payment or any other plan, arrangement or agreement with (A) the Company, (B) any Person (as defined in Section 4(e))whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Person) benefit (all such payments and benefits, and accelerations thereof including the Change in Control Severance Payments, being hereinafter called the "“Total Payments"”) would be subject (in whole or in part) to the tax (the "“Excise Tax"”) imposed under section Section 4999 of the Code, the Company Xxxxxxx shall pay to the Executive Employee such additional amounts (the "“Gross-Up Payment"”) such that the net amount retained by the ExecutiveEmployee, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive Employee shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date on which the Gross-Up Payment is calculated for purposes of this section, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive Employee shall repay to the CompanyXxxxxxx, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive Employee to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company Xxxxxxx shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive Employee with respect to such excess) at the time that the amount of such excess is finally determined. The Executive Employee and the Company Xxxxxxx shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Gross-Up. Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (whether pursuant to Employee or the terms acceleration of this Agreement any payment or any other plan, arrangement or agreement with (A) the Company, (B) any Person (as defined in Section 4(e))whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Person) benefit (all such payments and benefits, and accelerations thereof including the Change in Control Severance Payments, being hereinafter called the "“Total Payments"”) would be subject (in whole or in part) to the tax (the "“Excise Tax"”) imposed under section Section 4999 of the Code, the Company Xxxxxxx shall pay to the Executive Employee such additional amounts (the "“Gross-Up Payment"”) such that the net amount retained by the ExecutiveEmployee, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive Employee shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date on which the Gross-Up Payment is calculated for purposes of this section, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive Employee shall repay to the CompanyXxxxxxx, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive Employee to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken Form of Change in Control Agreement (04/27/2007) into account hereunder (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 Xxxxxxx shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive Employee with respect to such excess) at the time that the amount of such excess is finally determined. The Executive Employee and the Company Xxxxxxx shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Gross-Up. Notwithstanding any other provisions of this Agreement, in The following will be added to the event that Agreements as a new Section 14(h): (h) If any payment or benefit received (or any acceleration of any payment or benefit) made or provided to the Director or for the Director’s benefit in connection with this Agreement (the “Payments”) are determined to be received by the Executive (whether pursuant subject to the terms of this Agreement or any other plan, arrangement or agreement with (Ainterest charges and taxes imposed by Section 409A(a)(1)(B) the Company, (B) any Person (as defined in Section 4(e))whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called the "Total Payments") would be subject (in whole or part) to the tax (the "Excise Tax") imposed under section 4999 of the Code, or any state, local, or foreign taxes of a similar nature, or any interest charges or penalties with respect to such taxes (such taxes, together with any such interest charges and penalties, are collectively referred to as the “Section 409A Tax”), then the Company shall pay the Director, within 30 days after the date on which the Director provides the Company with a written request for reimbursement thereof (accompanied by proof of taxes paid), but in no event later than the end of the calendar year following the year in which the Director remits the Section 409A tax to the Executive such Internal Revenue Service or other applicable taxing authority, an additional amounts amount (the "“Section 409A Gross-Up Payment") ”); provided, however, that any Section 409A Gross-Up Payment shall be reduced to the extent that the Section 409A Tax payable is due to the direct fault of the Director. The Section 409A Gross-Up Payment shall, subject to the proviso at the end of the previous sentence, be such that the net amount retained by the Executive, Director after deduction of the Section 409A Tax (but not any Excise Tax on the Total Payments federal, state, or local income tax or employment tax) and any federal, state and state, or local income and tax, or employment taxes and Excise Tax tax upon the Gross-Up Payment, payment provided for by this Subsection 14(h) shall be equal to the Total Payments. For purposes of determining the amount of the Section 409A Gross-Up Payment, the Executive Director shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Section 409A Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence Director’s domicile for income tax purposes on the date on which the Section 409A Gross-Up Payment is calculated for purposes of this sectionmade, net of the maximum reduction in federal income taxes which could that may be obtained from the deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the The Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company Director shall each reasonably cooperate with the each other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Section 409A Tax with respect to the Total Payments, and the Director shall, if reasonably requested by the Company, contest any obligation to pay a Section 409A Tax for which a Section 409A Gross-Up Payment is owed. If, as a result thereof, the Director receives a tax refund or credit for any Section 409A Tax previously paid with respect to any Payments for which a Section 409A Gross-Up Payment was paid, the Director shall return to the Company an amount equal to such refund or credit.

Gross-Up. Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by Employee or the Executive (whether pursuant to the terms acceleration of this Agreement any payment or any other plan, arrangement or agreement with (A) the Company, (B) any Person (as defined in Section 4(e))whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Person) benefit (all such payments and benefits, and accelerations thereof including the Severance Paymentspayments and benefits provided herein if and to the extent applicable, being hereinafter called the "“Total Payments"”) would be subject (in whole or in part) to the tax (the "“Excise Tax"”) imposed under section Section 4999 of the Code, the Company Xxxxxxx shall pay to the Executive Employee such additional amounts (the "“Gross-Up Payment"”) such that the net amount retained by the ExecutiveEmployee, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. For purposes ; provided, however, that if a reduction in the Total Payments by an amount not in excess of determining ten percent (10%) of the Total Payments otherwise due would result in no Excise Tax being imposed on the Total Payments (after giving effect to such reduction), then the Total Payments shall be reduced so that the maximum amount of Total Payments is one dollar ($1.00) less than the amount of that would cause the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is Total Payments to be made and state and local income taxes at subject to the highest marginal rate of taxation in the state and locality of the Executive's residence on the date on which the Gross-Up Payment is calculated for purposes of this section, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxesExcise Tax. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunderhereunder or in the event a reduction in Total Payments should have been made that was not actually made, the Executive Employee shall repay to the CompanyXxxxxxx, at the time that the amount of such reduction in Excise Tax is finally determined, the portion amount of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) any overpayment plus interest on the amount of such repayment at the rate provided in section Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any 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 initially made is less than the payment that should have been made, or that a reduction in respect of such excess (plus any interestTotal Payments was made that should not have been made, penalties or additions payable by Xxxxxxx shall promptly pay the Executive with respect amount due to such excess) Employee at the time that the amount of such excess is finally determined. The Executive In all events, any Gross-Up Payment due to Employee shall be paid not later than the end of the year following the year in which the related taxes are remitted. Employee and the Company Xxxxxxx shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Gross-Up. Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with (A) the Company, (B) any Person (as defined in Section 4(e))whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called the "Total Payments") would be subject (in whole or part) to the tax (the "Excise Tax") imposed under section 4999 of the Code, the Company shall pay to the Executive such additional amounts (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date on which the Gross-Up Payment is calculated for purposes of this section, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Gross- Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Gross-Up. Notwithstanding any other provisions of (i) Anything in this AgreementAgreement to the contrary notwithstanding, in the event it shall be determined that any payment payment, award, benefit or distribution (or any acceleration of any payment, award, benefit received or to be received distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) to Executive or for Executive's benefit (whether pursuant to the terms of this Agreement or otherwise determined without regard to any other plan, arrangement or agreement with (A) the Company, (B) any Person (as defined in Section 4(e))whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Personadditional payments required under this Section) (all such payments and benefits, including the Severance Payments, being hereinafter called the "Total Payments") would be subject (in whole or part) to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax") imposed under section 4999 of the Code), then the Company shall pay to the Executive such an additional amounts payment (the a "Gross-Up Payment") in an amount such that the net amount retained after payment by the Executive, after deduction Executive of all taxes (including any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax Tax) imposed upon the Gross-Up Payment, Executive shall be retain an amount of the Gross-Up Payment equal to the Total Paymentssum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-up Payment in Executive's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income tax taxes at the highest marginal rate rates of federal income taxation in for the calendar year in which the Gross-Up up Payment is to be made and made, (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in the state and locality of the Executive's residence on the date on which the Gross-Up up Payment is calculated for purposes of this sectionto be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-up payment in Executive's adjusted gross income. (ii) Subject to the provisions of the immediately preceding subsection (i), all determinations required to be made concerning the Gross-Up Payment including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by the public accounting firm that is retained by the Company as of the date immediately prior to the Change in 50 Exhibit 10.(i)(b) Control (the "Accounting Firm") which shall provide detailed supporting calculations both to Executive and to the Company within fifteen (15) business days of the receipt of notice from Executive or the Company that there has been a Payment, or such earlier time as is requested by the Company (collectively, the "Determination"). In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, Executive may appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company and the Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Gross-up Payment with respect to any Payments shall be made no later than thirty (30) days following such Payment. If the Accounting Firm determines that no Excise Tax is subsequently determined payable by Executive, it shall furnish Executive with a written opinion to be less than the amount taken into account hereundersuch effect, the Executive shall repay and to the effect that failure to report the Excise Tax, if any, on Executive's applicable federal income tax return will not result in the imposition of a negligence or similar penalty. The Determination by the Accounting Firm shall be binding upon Executive and the Company, . As a result of the uncertainty in the application of Section 4999 of the Code at the time of the Determination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment") or Gross-up Payments will be made by the Company which should not have been made ("Overpayment"), consistent with the calculations required to be made hereunder. In the event that Executive thereafter is required to make payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction Underpayment (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus together with interest on the amount of such repayment at the rate provided in section Section 1274(b)(2)(B) of the Code) shall be promptly paid by the Company to or for Executive's benefit. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment)up Payment exceeds the amount necessary to reimburse Executive for Executive's Excise Tax, the Company Accounting Firm shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that determine the amount of the Overpayment that has been made and any such excess is finally determinedOverpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive(to the extent Executive have received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Company. The Executive and shall cooperate, to the extent Executive's expenses are reimbursed by the Company, with any reasonable requests by the Company shall each reasonably cooperate with the other in connection with any administrative contests or judicial proceedings concerning disputes with the existence or amount of liability for Internal Revenue Service in connection with the Excise Tax with respect to the Total PaymentsTax.

Gross-Up. Notwithstanding any other provisions of Anything in this AgreementAgreement to the contrary notwithstanding, in the event it shall be determined that any payment payment, award, benefit or distribution (or any acceleration of any payment, award, benefit received or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) to be received by or for the benefit of the Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any other plan, arrangement or agreement with (A) the Company, (B) any Person (as defined in additional payments required under this Section 4(e))whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Person6) (all such payments and benefits, including the Severance Payments, being hereinafter called the "Total Payments"“ Payments ”) would be subject (in whole or part) to the excise tax (the "Excise Tax") imposed under section by Section 4999 of the CodeInternal Revenue Code of 1986, as amended (the “ Code ”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “ Excise Tax ”), then the Company shall pay to the Executive such an additional amounts payment (the "a “ Gross-Up Payment"Payment ”) in an amount such that the net amount retained after payment by the ExecutiveExecutive of all taxes (including, after deduction of without limitation, any Excise Tax on the Total Payments income taxes and any federalinterest and penalties imposed with respect thereto, state and local income and employment taxes and Excise Tax any excise tax) imposed upon the Gross-Up Payment, shall be the Executive retains an amount of the Gross-Up Payment equal to the Total Paymentssum of (x) the Excise Tax imposed upon the Payments and (y) the product of (A) any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and (B) the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income tax taxes at the highest marginal rate rates of federal income taxation in for the calendar year in which the Gross-Up Payment is to be made and made, (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in the state and locality of the Executive's residence on the date on which the Gross-Up Payment is calculated for purposes of this sectionto be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In taxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion inclusion of the Gross-Up Payment attributable to such reduction (plus that portion of in the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total PaymentsExecutive’s adjusted gross income.

Gross-Up. Notwithstanding any other provisions of (a) Anything in this AgreementAgreement to the contrary notwithstanding, in the event it shall be determined (as hereafter provided) that any payment payment, benefit or benefit received distribution to or to be received by for the Executive (Executive’s benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or any other planotherwise (a “Payment”), arrangement or agreement with (A) the Company, (B) any Person (as defined in Section 4(e))whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called the "Total Payments") would be subject (in whole or part) to the excise tax (the "Excise Tax") imposed under section by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (or any successor provision thereto), or any interest or penalties with respect to such excise tax (such tax, together with any such interest and penalties, hereafter collectively referred to as the Company shall pay to “Excise Tax”), then the Executive such shall be entitled to receive an additional amounts payment or payments (the "a “Gross-Up Payment"”) in an amount such that the net amount retained that, after payment by the ExecutiveExecutive of all taxes (including any interest or penalties imposed with respect to such taxes), after deduction of including any Excise Tax on the Total Payments and any federalTax, state and local income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, shall be the Executive retains an amount of the Gross-Up Payment equal to the Total Excise Tax imposed upon the Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax taxes at the highest marginal rate rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate rates of taxation applicable to individuals as are in effect in the state and locality of the Executive's ’s residence on in the date on calendar year in which the Gross-Up Payment is calculated for purposes of this sectionto be made, net of the maximum reduction in federal income taxes which could that can be obtained from deduction of such state and local taxes. In , taking into account any limitations applicable to individuals subject to federal income tax at the event that the highest marginal rates. (b) All determinations required to be made under this Section 4.7, including whether an Excise Tax is subsequently determined to be less than payable by the amount taken into account hereunderExecutive, the Executive shall repay to the Company, at the time that the amount of such reduction Excise Tax, whether a Gross-Up Payment is required, and the amount of such Gross-Up Payment, shall be made by mutual agreement between the Executive and the Company. If the parties are not able to reach an agreement with respect to such determinations, then an independent auditor (the “Firm”) selected by the Executive and the Company shall make such determinations. The Firm shall be a nationally-recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way for the Company or any affiliate thereof. Either the Company or the Executive may request that a determination be made. The Firm shall submit its determination and detailed supporting calculations to the Executive and the Company as promptly as practicable. If the Firm determines that any Excise Tax is finally determinedpayable by the Executive and that a Gross-Up Payment is required, the portion Company shall pay the Executive the required Gross-Up Payment within thirty (30) days of receipt of such determination and calculations. If the Firm determines that no Excise Tax is payable by the Executive, it shall, at the same time it makes such determination, furnish the Executive with an opinion that the Executive has substantial authority not to report any Excise Tax on the Executive’s federal income tax return. Any determination by the Firm as to the amount of the Gross-Up Payment attributable shall be binding upon the Executive and the Company. (c) As a result of the uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) at the time of the initial determination by the Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”). If the Executive thereafter is required to make a payment of any Excise Tax, the Firm shall determine the amount of the Underpayment (if any) that has occurred and submit its determination and detailed supporting calculations to the Executive and the Company as promptly as possible. Any such reduction Underpayment shall be promptly paid by the Company to the Executive, or for the Executive’s benefit, within thirty (plus 30) days of receipt of such determination and calculations. (d) In the event that portion the Internal Revenue Service makes any claim, gives notice of any potential claim or institutes a proceeding against the Executive asserting that any Excise Tax or additional Excise Tax is due in respect of the Payments, the Executive shall promptly give the Company notice of any such claim, potential claim or proceeding. The Company shall have the right to conduct all discussions, negotiations, defenses, actions and proceedings, to the extent reasonably requested by the Company. The Executive will not settle any claim or proceeding relating solely to the Excise Tax payable in respect of the Payments without the consent of the Company, which consent shall not be unreasonably withheld. The Executive shall file, at the Company’s expense, all requests for refunds of the Gross-Up Payment attributable Amount, or any portion thereof, paid to any taxing authority as shall be reasonably requested by the Company and shall pay over to the Excise Tax Company (net of any tax payable thereon) any such refunds, together with any interest thereon, when and federal, state as such refunds and local income tax imposed on the Gross-Up Payment being repaid interest are received by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total PaymentsExecutive.

Gross-Up. Notwithstanding any other provisions of this Agreement, in the event (1) If it shall be determined that any payment payment, distribution or benefit received or to be received by Executive from the Executive Company (whether payable pursuant to the terms of this Agreement or any other plan, arrangement arrangements or agreement with (A) the Company, (B) any Person (as defined in Section 4(e))whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Persona Affiliate (as defined above) (all such payments and benefits, including the Severance Payments, being hereinafter called the "Total Payments")) would be subject (in whole or part) to the excise tax imposed by Section 4999 of the Code (the "Excise Tax") imposed under section 4999 of the Code), the Company then Executive shall pay be entitled to the Executive such receive an additional amounts payment (the "Excise Tax Gross-Up Payment") in an amount such that the net amount retained by the Executive, after the calculation and deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and excise tax on the Excise Tax upon the Gross-Up PaymentPayment provided for in this Section 6(g), shall be equal to the Total Payments. For purposes of In determining this amount, the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is attributable to be made and state and local federal income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date on which the Gross-Up Payment is calculated for purposes of this section, net of shall be reduced by the maximum reduction in federal income taxes which that could be obtained from by the deduction of such the portion of the Excise Tax Gross-Up Payment attributable to state and local income taxes. Finally, the Excise Tax Gross-Up Payment shall be reduced by income or excise tax withholding payment made by the Company or any affiliate of either to any federal, state or local taxing authority with respect to the Excise Tax Gross-Up Payment that was not deducted from compensation payable to Executive. (2) All determinations required to be made under this Section 6(g), including whether and when an Excise Tax Gross-Up Payment is required and the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, except as specified in Section 6(g)(i) above, shall be made by the Company's independent auditors (the "Accounting Firm"), which shall provide detailed supporting calculations both to the Company and Executive. Such determination of tax liability made by the Accounting Firm shall be subject to review by Executive's tax advisor and, if Executive's tax advisor does not agree with such determination reached by the Accounting Firm, then the Accounting Firm and Executive's tax advisor shall jointly designate a nationally recognized public accounting firm, which shall make such determination. All reasonable fees and expenses of the accountants and tax advisors retained by either Executive or the Company shall be borne by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 6(g), shall be paid by the Company to Executive within five days after the receipt of such determination. Any determination by a jointly designated public accounting firm shall be binding upon the Company and Executive. (3) As a result of the uncertainty in the application of Subsection 4999 of the Code at the time of the initial determination thereunder, it is possible that Excise Tax Gross-Up Payments will not have been made by the Company that should have been made consistent with the calculations required to be made hereunder ("Underpayment"). In the event that Executive thereafter is required to make a payment of any Excise Tax, any such Underpayment calculated in accordance with and in the same manner as the Excise Tax Gross-Up Payment in Section 6(g)(i) above shall be promptly paid by the Company to or for the benefit of Executive. In the event that the Excise Tax is Gross-Up Payment exceeds the amount subsequently determined to be less than due, such excess shall constitute a loan from the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction Company (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus together with interest on the amount of such repayment at the rate provided in section Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Gross-Up. Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (whether pursuant to Employee or the terms acceleration of this Agreement any payment or any other plan, arrangement or agreement with (A) the Company, (B) any Person (as defined in Section 4(e))whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Person) benefit (all such payments and benefits, and accelerations thereof including the Change in Control Severance Payments, being hereinafter called the "Total Payments") would be subject (in whole or in part) to the tax (the "Excise Tax") imposed under section Section 4999 of the Code, the Company shall Beckxxx xxxll pay to the Executive Employee such additional amounts (the "Gross-Up Payment") such that the net amount retained by the ExecutiveEmployee, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive Employee shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date on which the Gross-Up Payment is calculated for purposes of this section, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive Employee shall repay to the CompanyBeckxxx, at xx the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive Employee to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.or

Gross-Up. Notwithstanding any other provisions of this Agreement, in (a) In the event that any payment or benefit received or to be received by the Executive shall become entitled to the payments and/or benefits provided by Section 10 or any other amounts (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with (A) the Company, (B) any Person (as defined in Section 4(e))whose person whose actions result in a Change in Control change of ownership covered by Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Code") or (C) any Person person affiliated with the Company or such Personperson) (all such payments and benefits, including the Severance Payments, being hereinafter called collectively the "Total Company Payments") would ), and such Company Payments will be subject (in whole or part) to the tax (the "Excise Tax") imposed under section by Section 4999 of the CodeCode (and any similar tax that may hereafter be imposed), the Company shall pay to the Executive such at the time specified in paragraph (d) below an additional amounts amount (the "Gross-Up up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Company Payments and any federal, state and local income and employment taxes tax and Excise Tax upon the Gross-Up Paymentup Payment provided for by this paragraph (a), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date on which the Gross-Up Payment is calculated but before deduction for purposes of this section, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a any federal, state or local income tax deductionon the Company Payments, shall be equal to the Company Payments. (b) plus interest on For purposes of determining whether any of the Company Payments and Gross-up Payments (collectively the "Total Payments") will be subject to the Excise Tax and the amount of such repayment at Excise Tax, (a) the rate provided in Total Payments shall be treated as "parachute payments" within the meaning of section 1274(b)(2)(B280G(b)(2) of the Code. In , and all "parachute payments" in excess of the event that "base amount" (as defined under Code Section 280G(b)(3)) shall be treated as subject to the Excise Tax is determined Tax, unless and except to exceed the amount taken into account hereunder extent that, in the opinion of the Company's independent certified public accountants appointed prior to any change in ownership (including as defined under Code Section 280G(b)(2)) or tax counsel selected by reason such accountants (the "Accountants") such Total Payments (in whole or in part) either do not constitute "parachute payments", represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the "base amount" or are otherwise not subject to the Excise Tax, and (b) the value of any non-cash benefits or any deferred payment the existence or amount of which cannot benefit shall be determined at by the time Accountants in accordance with the principles of Section 280G of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total PaymentsCode.

Gross-Up. Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (whether pursuant to Employee or the terms acceleration of this Agreement any payment or any other plan, arrangement or agreement with (A) the Company, (B) any Person (as defined in Section 4(e))whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Person) benefit (all such payments and benefits, and accelerations thereof including the Change in Control Severance Payments, being hereinafter called the "Total Payments") would be subject (in whole or in part) to the tax (the "Excise Tax") imposed under section Section 4999 of the Code, the Company shall Beckxxx xxxll pay to the Executive Employee such additional amounts (the "Gross-Up Payment") such that the net amount retained by the ExecutiveEmployee, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive Employee shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date on which the Gross-Up Payment is calculated for purposes of this section, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive Employee shall repay to the CompanyBeckxxx, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive Employee to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall Beckxxx xxxll make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive Employee with respect to such excess) at the time that the amount of such excess is finally determined. The Executive Employee and the Company shall Beckxxx xxxll each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Gross-Up. Notwithstanding any other provisions of this Agreement, This section will apply in the event that the Employee, or any payment of his beneficiaries or benefit received or to be received by the Executive (whether pursuant to the terms of designees, receives payments under this Agreement or under any other plan, arrangement agreement, program, or agreement with (A) policy that is sponsored by the Company, (B) any Person which are determined (as defined in Section 4(e))whose actions result in a Change in Control or described below) to be subject to excise tax under Internal Revenue Code (CIRC) any Person affiliated with section 4999 ("excess parachute payments"). (a) If it is determined that the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called the "Total Payments") Employee would be subject (in whole or part) to the excise tax (the "Excise Tax") imposed under section 4999 of the Codenoted above on such excess parachute payments, the Company shall pay to the Executive Employee within 10 days following such determination or date of payment, if later, an additional amounts amount (the "Gross-Up up Payment") such which may be necessary to reimburse the Employee on an after-tax basis (including income, FICA and excise taxes) for any excise tax that the net amount retained may be imposed by the Executive, after deduction Internal Revenue Service or a court. Such determination of any Excise the existence of excess parachute payments must be made either pursuant to a written determination by the public accounting firm designated by the Company to provide tax assistance service under the Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal Assistance Plan prior to the Total PaymentsChange of Control or such other party as may be specifically designated by the Company prior to the Change of Control, pursuant to a closing agreement made under IRC Section 7121 that is approved by the IRS and involves the Employee, or pursuant to a decision involving the Employee by a court of competent jurisdiction. For purposes of determining In calculating the amount of the Gross-Up up Payment, the Executive it shall be deemed to pay federal income tax at assumed that the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and Employee pays state and local income taxes at the highest marginal rate of taxation in imposed by the state and locality of in which the Executive's residence on Employee resides or is employed (or both) in the date on calendar year in which the Gross-Up up Payment is calculated for purposes of this section, net of to be made and pays FICA taxes on wages earned. It also shall be assumed that the Employee's income tax rate will be computed based upon the maximum reduction in effective marginal federal, state, and local income tax rates (including FICA taxes) on earned income, with such maximum effective federal income taxes which could rate to be obtained from computed with regard to IRC section 68, and applying any available deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes for federal income tax imposed on the Gross-Up Payment being repaid purposes. All such calculations shall be made by the Executive public accounting firm or party specified in this Section in an equitable manner. (b) Notwithstanding any other provision in this Agreement to the extent contrary, if it is determined by the Company's independent auditors, elected by the shareholders prior to the Change of Control, that such repayment results the tax gross-up provisions in a reduction in Excise Tax and/or a federal, state this section as they relate to the accelerated vesting of nonqualified stock options or local income tax deduction) plus interest on restricted stock issued by the amount of such repayment at Company would be the rate provided in section 1274(b)(2)(B) sole reason precluding the use by the Company of the Codepooling of interests method of accounting, then the tax gross-up provisions of this section shall not apply to such nonqualified stock options or restricted stock as the case may be, unless the gross-up payment as described herein can be altered, modified or delayed to allow it to be paid without precluding the use of the pooling of interest method of accounting. In The Company will make best efforts to alter, modify, or delay the event payment so that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot gross-up can be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Paymentsmade.

Gross-Up. Notwithstanding any other provisions of this Agreement, in (a) In the event that Executive shall become entitled to the payments and/or benefits provided by Section 5 or any payment or benefit received or to be received by the Executive other amounts (whether pursuant to the terms of this Agreement agreement or any other plan, arrangement or agreement with (Ai) the Company, (Bii) any Person (as defined in Section 4(e))whose person whose actions result in a Change in Control change of ownership covered by Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”) or (Ciii) any Person person affiliated with the Company or such Personperson) as a result of a Change in Control as defined in Attachment A (all collectively the “Company Payments”), and such payments and benefits, including the Severance Payments, being hereinafter called the "Total Payments") would Company Payments will be subject (in whole or part) to the tax (the "“Excise Tax"”) imposed under section by Section 4999 of the CodeCode (and any similar tax that may hereafter be imposed), the Company shall pay to Executive at the Executive such time specified in paragraph (d) below an additional amounts amount (the "“Gross-Up up Payment"”) such that the net amount (of the Company Payments and the Gross-up Payment) retained by the Executive, after deduction of any Excise Tax on the Total Company Payments and any federal, state and local income and employment taxes tax and Excise Tax upon the Gross-Up Paymentup Payment provided for by this paragraph (a), but before deduction for any federal, state or local income tax on the Company Payments, shall be equal to the Company Payments. (b) For purposes of determining whether any of the Company Payments and Gross-up Payments (collectively the “Total Payments. ”) will be subject to the Excise Tax and the amount of such Excise Tax, (a) the Total Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of the Company's independent certified public accountants appointed prior to any change in ownership (as defined under Code Section 280G(b)(2)) or tax counsel selected by such accountants (the “Accountants“) such Total Payments (in whole or in part) either do not constitute “parachute payments,” represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(2) of the Code in excess of the “base amount“ or are otherwise not subject to the Excise Tax, and (b) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. (c) For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to pay federal income tax taxes at the highest marginal rate of federal income taxation applicable to him in the calendar year in which the Gross-Up up Payment is to be made and state and local income taxes at the highest marginal rate of taxation applicable to Executive in the state and locality of the Executive's residence on for the date on calendar year in which the Gross-Up Company Payment is calculated for purposes of this sectionto be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes if paid in such year. In the event that the Excise Tax is subsequently determined by the Accountants to be less than the amount taken into account hereunderhereunder at the time the Gross-up payment is made, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the prior Gross-Up up Payment attributable to such reduction (plus that the portion of the Gross-Up up Payment attributable to the Excise Tax tax and federal, federal and state and local income tax imposed on the portion of the Gross-Up up Payment being repaid by the Executive to the extent that if such repayment results in a reduction in Excise Tax and/or or a federal, federal and state or and local income tax deduction) ), plus interest on the amount of such repayment at the rate provided in section Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event any portion of the Gross-up Payment to be refunded to the Company has been paid to any federal, state or local tax authority, repayment thereof (and related amounts) shall not be required until actual refund or credit of such portion has been made to Executive, and interest payable to the Company shall not be required until actual refund or credit of such portion has been made to Executive, and interest payable to the Company shall not exceed the interest received or credited to Executive by such tax authority for the period it held such portion. Executive and the Company shall mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if Executive's claim for refund or credit is denied. In the event that the Excise Tax is later determined by the Accountants or the Internal Revenue Service to exceed the amount taken into account hereunder at the time the Gross-up Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up up Payment), the Company shall make an additional Gross-Up up Payment in respect of such excess (plus any interest, interest or penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. . (d) The Gross-up Payment or portion thereof provided for in paragraph (c) above shall be paid not later than the thirtieth day following an event occurring which subjects Executive to the Excise Tax; 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 Accountants, of the minimum amount of such payments and the Company shall each reasonably cooperate with pay the other in connection with any administrative remainder of such payments or judicial proceedings concerning the existence or Executive shall reimburse the Company for the amount of liability any over-payment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to paragraph (c) hereof, as soon as the amount thereof can reasonably be determined, but in no event later than the end of the Executive’s taxable year next following the Executive’s taxable year in which he remits the related taxes. (e) The Company shall be responsible for Excise Tax with respect to all charges of the Total PaymentsAccountants.

Gross-Up. Notwithstanding any other provisions of (i) Anything in this AgreementAgreement to the contrary notwithstanding, in the event it shall be determined that any payment payment, award, benefit or distribution (or any acceleration of any payment, award, benefit received or to be received distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) to Executive or for Executive's benefit (whether pursuant to the terms of this Agreement or otherwise determined without regard to any other plan, arrangement or agreement with (A) the Company, (B) any Person (as defined in Section 4(e))whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Personadditional payments required under this Section) (all such payments and benefits, including the Severance Payments, being hereinafter called the "Total Payments") would be subject (in whole or part) to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax") imposed under section 4999 of the Code), then the Company shall pay to the Executive such an additional amounts payment (the a "Gross-Up Payment") in an amount such that the net amount retained after payment by the Executive, after deduction Executive of all taxes (including any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax Tax) imposed upon the Gross-Up Payment, Executive shall be retain an amount of the Gross-Up Payment equal to the Total Paymentssum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-up Payment in Executive's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income tax taxes at the highest marginal rate rates of federal income taxation in for the calendar year in which the Gross-Up up Payment is to be made and made, (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in the state and locality of the Executive's residence on the date on which the Gross-Up up Payment is calculated for purposes of this sectionto be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-up payment in Executive's adjusted gross income. Exhibit 10.(i)(a) (ii) Subject to the provisions of the immediately preceding subsection (i), all determinations required to be made concerning the Gross-Up Payment including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by the public accounting firm that is retained by the Company as of the date immediately prior to the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations both to Executive and to the Company within fifteen (15) business days of the receipt of notice from Executive or the Company that there has been a Payment, or such earlier time as is requested by the Company (collectively, the "Determination"). In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, Executive may appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company and the Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Gross-up Payment with respect to any Payments shall be made no later than thirty (30) days following such Payment. If the Accounting Firm determines that no Excise Tax is subsequently determined payable by Executive, it shall furnish Executive with a written opinion to be less than the amount taken into account hereundersuch effect, the Executive shall repay and to the effect that failure to report the Excise Tax, if any, on Executive's applicable federal income tax return will not result in the imposition of a negligence or similar penalty. The Determination by the Accounting Firm shall be binding upon Executive and the Company, . As a result of the uncertainty in the application of Section 4999 of the Code at the time of the Determination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment") or Gross-up Payments will be made by the Company which should not have been made ("Overpayment"), consistent with the calculations required to be made hereunder. In the event that Executive thereafter is required to make payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction Underpayment (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus together with interest on the amount of such repayment at the rate provided in section Section 1274(b)(2)(B) of the Code) shall be promptly paid by the Company to or for Executive's benefit. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment)up Payment exceeds the amount necessary to reimburse Executive for Executive's Excise Tax, the Company Accounting Firm shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that determine the amount of the Overpayment that has been made and any such excess is finally determinedOverpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive(to the extent Executive have received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Company. The Executive and shall cooperate, to the extent Executive's expenses are reimbursed by the Company, with any reasonable requests by the Company shall each reasonably cooperate with the other in connection with any administrative contests or judicial proceedings concerning disputes with the existence or amount of liability for Internal Revenue Service in connection with the Excise Tax with respect to the Total PaymentsTax.

Gross-Up. Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with (A) the Company, (B) any Person (as defined in Section 4(e))whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called the "Total Payments") would be subject (in whole or part) to the tax (the "Excise Tax") imposed under section 4999 of the Code, the Company shall pay to the Executive such additional amounts (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date on which the Gross-Up Payment is calculated for purposes of this section, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.