Common use of Parachute Payments Clause in Contracts

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement to Employee (the “Benefit”), determined without regard to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employee.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to the Employee (the “Benefit”), determined without regard to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code Code, then, at Employee’s discretion, Employee’s severance and other benefits under this Agreement shall be payable either (i) in full, or any interest or penalties payable with respect (ii) as to such lesser amount which would result in no portion of such severance and other benefits being subject to the excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Employee on an after-tax basis, of the greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any reduction shall be made in the following manner: first a pro rata reduction of (such excise taxi) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code, together with and second a pro rata cancellation of (i) equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code. Reduction in either cash payments or equity compensation benefits shall be made prorata between and among benefits which are subject to Section 409A of the Code and benefits which are exempt from Section 409A of the Code. Unless the Company and Employee otherwise agree in writing, any such interest and penalties, are hereinafter collectively referred to as determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Excise TaxAccountants”), then Employee whose determination shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount sufficient to reimburse conclusive and binding upon Employee for both (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit all purposes. For purposes as of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the day prior Code. The Company and Employee shall furnish to the effective date of Accountants such information and documents as the Change of Control shall perform the foregoing calculationsAccountants may reasonably request in order to make a determination under this Section. The Company shall bear all expenses costs the Accountants may reasonably incur in connection with respect to the determinations any calculations contemplated by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeethis Section.

Parachute Payments. In Notwithstanding anything to the contrary in this Agreement, in the event that any payment, distribution, or provision of a benefit by Company to or for the severance and other benefits benefit of Executive, whether paid or payable, distributed or distributable, or provided for in or to be provided pursuant to the terms of this Agreement to Employee or otherwise (the a “BenefitPayment”), determined without regard to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable with respect to such excise tax (such excise tax, together with any such interest and or penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee Company shall be entitled pay to receive from Executive on or as soon as administratively practicable following the Company day on which the Excise Tax is remitted by or on behalf of Executive (but no later than the end of the taxable year following the year in which the Excise Tax is remitted) an additional payment (the a “Gross-Up up Payment”) in an amount sufficient to reimburse Employee for both such that after payment by Executive of all taxes (A) such Excise Tax, and (B) the income, excise, employment and including any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company interest or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be penalties imposed with respect to such Benefit. Any good faith determinations taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the accounting firm made hereunder shall be final, binding and conclusive Gross-up Payment equal to the Excise Tax imposed upon the Payments. Company and EmployeeExecutive shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.

Parachute Payments. In (a) If it is determined by a nationally recognized United States public accounting firm selected by the event that Employer and approved in writing by the severance and other benefits provided for in this Agreement to Employee Executive (which approval shall not be unreasonably withheld) (the “BenefitAuditors”) that any payment or benefit made or provided to the Executive in connection with this Agreement or otherwise (including without limitation any Stock Option or other equity based award vesting) (collectively, a “Payment”), determined without regard to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties (the “Parachute Tax”), then the Employer shall pay to the Executive, prior to the time the Parachute Tax is payable with respect to such excise tax (such excise taxPayment, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee shall be entitled to receive from the Company an additional payment (the a “Gross-Up Payment”) in an amount sufficient such that, after payment by the Executive of all taxes (including any Parachute Tax) imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to reimburse Employee for both the Parachute Tax imposed upon the Payment. The amount of any Gross-Up Payment shall be determined by the Auditors, subject to adjustment, as necessary, as a result of any Internal Revenue Service position. For purposes of making the calculations required by this Agreement, the Auditors may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, provided that the Auditors’ determinations must be made with substantial authority (Awithin the meaning of Section 6662 of the Code). (b) such Excise Tax, and The federal tax returns filed by the Executive (B) the income, excise, employment and any other taxes imposed filing made by a consolidated tax group which includes the Employer) shall be prepared and filed on a basis consistent with the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as determination of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses Auditors with respect to the determinations Parachute Tax payable by such accounting firm required to be made hereunderthe Executive. The accounting firm engaged to Executive shall make proper payment of the determinations hereunder shall amount of any Parachute Tax, and at the request of the Employer, provide its calculations, together with detailed supporting documentation, to the Company Employer true and to Employee within fifteen correct copies (15with any amendments) calendar days after of his federal income tax return as filed with the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or Internal Revenue Service, and such other time as documents reasonably requested by the Company or by EmployeeEmployer, evidencing such payment. If If, after the accounting firm determines that no Excise Tax is payable with respect Employer’s payment to the BenefitExecutive of the Gross-Up Payment, the Auditors determine in good faith that the amount of the Gross-Up Payment should be reduced or increased, or such determination is made by the Internal Revenue Service, then within ten (10) business days of such determination, the Executive shall pay to the Employer the amount of any such reduction, or the Employer shall pay to the Executive the amount of any such increase; provided, however, that in no event shall the Executive have any such refund obligation if it is determined by the Employer that to do so would be a violation of the Sxxxxxxx-Xxxxx Act of 2002, as it may be amended from time to time; and provided, further, that if the Executive has prior thereto paid such amounts to the Internal Revenue Service, such refund shall furnish be due only to the Company extent that a refund of such amount is received by the Executive; and Employee provided, further, that (i) the fees and expenses of the Auditors (and any other legal and accounting fees) incurred for services rendered in connection with an opinion reasonably acceptable to Employee that no Excise the Auditor’s determination of the Parachute Tax will be imposed with respect or any challenge by the Internal Revenue Service or other taxing authority relating to such Benefit. Any good faith determinations determination shall be paid by the Employer and (ii) the Employer shall indemnify and hold the Executive harmless on an after-tax basis for any interest and penalties imposed upon the Executive to the extent that such interest and penalties are related to the Auditor’s determination of the accounting firm made hereunder Parachute Tax or the Gross-Up Payment. Notwithstanding anything to the contrary herein, the Executive’s rights under this Section 6 shall be final, binding survive the termination of his employment for any reason and conclusive upon the Company and Employeetermination or expiration of this Agreement for any reason.

Parachute Payments. In the event that the severance and other benefits provided for (1) Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) by Employer (or any of its affiliated entities) or any successor (or any of its affiliated entities) to or for the benefit of Employee (whether pursuant to the “Benefit”), determined without regard terms of this Agreement or otherwise) (the Payments) would be subject to any additional payment required the excise tax (the Excise Tax) under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), and then the amounts payable to Employee under this Agreement shall be reduced (iireducing first the payments under Section 3(b), unless an alternative method of reduction is elected by Employee) be to the maximum amount as will result in no portion of the Payments being subject to such Excise Tax (the excise Safe Harbor Cap). For purposes of reducing the Payments of the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced, unless consented to by Employee. (2) All determinations required to be made under this Subsection 4(f) shall be made by the public accounting firm that is generally retained by Employer (the Accounting Firm). In the event that the Accounting Firm is serving as accountant or auditor for any individual, entity or group effecting a Change of Control (or if the Accounting Firm fails to make the Determination), Employee 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). If payments are reduced to the Safe Harbor Cap, the Accounting Firm shall provide a reasonable opinion to Employee that he or she is not required to report any Excise Tax on his federal income tax imposed return. All fees, costs and expenses (including, but not limited to the costs of retaining experts) of the Accounting Firm shall be borne by Employer, and the determination by the Accounting Firm shall be binding upon Employer and Employee (except as provided in Subsection (3) below). (3) If it is established pursuant to a final determination of a court or an Internal Revenue Service (the IRS) proceeding which has been finally and conclusively resolved, that Payments have been made to, or provided for the benefit of, Employee by Employer, which are in excess of the limitations provided in this Section 4 (hereinafter referred to as an Excess Payment), such Excess Payment shall be deemed for all purposes to be a loan to Employee made on the date Employee received the Excess Payment and Employee shall repay the Excess Payment to Employer on demand, together with interest on the Excess Payment at the applicable federal rate (as defined in Section 1274(d) of the Code) from the date of Employee’s receipt of such Excess Payment until the date of such repayment. As a result of the uncertainty in the application of Section 4999 of the Code or any interest or penalties payable with respect to such excise tax at the time of the determination, it is possible that Payments which will not have been made by Employer shall have been made (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”an Underpayment), then Employee shall be entitled to receive from consistent with the Company an additional payment (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm calculations required to be made hereunderunder this Subsection 4(f). The accounting firm engaged to make In the determinations hereunder event that it is determined (i) by the Accounting Firm, Employer (which shall provide its calculationsinclude the position taken by Employer, or together with detailed supporting documentationits consolidated group, on its federal income tax return) or the IRS, or (ii) pursuant to the Company and a determination by a court, that an Underpayment has occurred, Employer shall pay an amount equal to such Underpayment to Employee within fifteen ten (1510) calendar days after of such determination together with interest on such amount at the applicable federal rate from the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable amount would have been paid to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations until the date of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeepayment.

Parachute Payments. In the event that it shall be determined under this Section 7.3 that any payment or benefit to Executive or for the benefit of Executive or on Executive’s behalf (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or any other agreement, arrangement or plan with the Company or any Affiliate (as defined below) (including, without limitation, the severance benefits as set forth in Section 4.3 of Exhibit A, attached hereto) (individually, a “Payment” and other benefits provided for in this Agreement to Employee (collectively, the “BenefitPayments”), determined without regard ) would be subject to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of excise tax imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable with respect to such excise tax successor provision thereto (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee Executive shall be entitled to receive from the Company an one or more additional payment payments (individually, a “Gross-Up Payment” and collectively, the “Gross-Up PaymentPayments”) in an aggregate amount sufficient to reimburse Employee for both such that the net amount of the Payments and the Gross-Up Payments retained by Executive after the payment of all Excise Taxes (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company interest and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be penalties imposed with respect to such Benefit. Any good faith determinations Excise Taxes) on the Payments and all federal, state and local income tax, employment taxes and Excise Taxes (including any interest and penalties imposed with respect to such taxes and Excise Taxes) on the Gross-Up Payments provided for in this Section 7.3, and taking into account any lost or reduced tax deductions on account of the Gross-Up Payments, shall be equal to the Payments. For purposes of this Section 7.3, an “Affiliate” shall mean any successor to all or substantially all of the business and/or assets of the Company, any person acquiring ownership or effective control of the Company or ownership of a substantial portion of the assets of the Company’s assets, or any other person whose relationship to the Company, such successor or such person acquiring ownership or control is such as to require attribution between the parties under Section 318(a) of the Code. (a) All determinations required to be made under this Section 7.3, including whether and when any Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, shall be made by the Accountants (as defined below), which shall provide Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment within thirty (30) days of the receipt of notice from Executive or the Company that Executive has received or will receive a Payment. For the purposes of this Section 7.3, the “Accountants” shall mean the Company’s independent certified public accounting firm made serving immediately prior to the Change of Control (or other change in ownership or effective control, or change in ownership of a substantial portion of the assets, of a corporation, as defined in Section 280G of the Code) with respect to which such determination is being made. In the event that the Accountants are also serving as the accountants, auditors or consultants for the individual, entity or group effecting the Change of Control (or other change in ownership or effective control, or change in ownership of a substantial portion of the assets, of a corporation, as defined in Section 280G of the Code), the Company shall appoint another nationally recognized independent certified public accounting firm, reasonably acceptable to Executive, to make the determinations required hereunder (which accounting firm shall then be referred to as the “Accountants” hereunder). All fees and expenses of the Accountants shall be final, binding and conclusive upon borne solely by the Company and EmployeeCompany.

Parachute Payments. In Notwithstanding anything to the contrary herein or in any Benefit Plan, in the event it shall be determined that any monetary amounts or benefits due or payable by the severance and other benefits provided for in this Agreement Company to Employee Executive (the “Benefit”)whether paid or payable, determined without regard or due or distributed) are or will become subject to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by under Section 4999 of the Code or any interest or penalties payable with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise TaxTaxes”), then Employee the amounts or benefits otherwise due or payable to Executive pursuant to this Agreement or any Benefit Plans shall be entitled reduced to receive from the Company an additional payment extent necessary so that no portion of such amounts or benefits shall be subject to the Excise Taxes, but only if (i) the “Gross-Up Payment”net amount of such amounts and benefits, as so reduced (and after the imposition of the total amount of taxes under federal, state and local law on such amounts and benefits), is greater than (ii) in an amount sufficient to reimburse Employee for both the excess of (A) the net amount of such Excise Taxamounts and benefits, without reduction (but after imposition of the total amount of taxes under federal, state and local law) over (B) the income, excise, employment amount of Excise Taxes to which Executive would be subject on such unreduced amounts and any other taxes benefits. If it is determined that Excise Taxes will or might be imposed on Executive in the Gross Up Payment provided under absence of such reduction, the Company and Executive shall make good faith efforts to seek to identify and pursue reasonable action to avoid or reduce the amount of Excise Taxes; provided, however, that this sentence shall not be construed to require Executive to accept any further reduction in the amount or benefits that would be payable to him in the absence of this sentence. The provisions of this Section 410(d) shall override and control any inconsistent provision in the LTIP. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the All determinations by such accounting firm required to be made hereunder. The under this Section 10(d), including whether reduction is required, the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made in good faith by an independent accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time selected by the Company or by Employee) or such other time as requested in accordance with applicable law (the “Accounting Firm”), in consultation with tax counsel reasonably acceptable to Executive. All fees and expenses of the Accounting Firm shall be borne solely by the Company or by EmployeeCompany. If the accounting firm Accounting Firm determines that no Excise Tax excise tax under Section 4999 of the Code is payable with respect to the Benefitby Executive, it shall furnish the Company and Employee shall request that the Accounting Firm furnish Executive with an opinion reasonably acceptable written guidance that failure to Employee that no Excise Tax will be imposed with respect to report such Benefit. Any good faith determinations excise tax on Executive’s applicable federal income tax return would not result in the imposition of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeea negligence or similar penalty.

Parachute Payments. In the event that the severance and other benefits provided for Notwithstanding anything contained in this Agreement to Employee the contrary, to the extent that payments and benefits provided under this Agreement or otherwise (including the acceleration of vesting of equity awards) to Executive (such payments or benefits are collectively referred to as the “Payments”) would be subject to the excise tax (the “BenefitExcise Tax”) imposed under Section 4999 of the Code, the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to Executive shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by Executive shall exceed the net after-tax benefit received by him if no such reduction was made. For purposes of this Section 9(d), determined without regard to any additional payment required under this section 4, would “net after-tax benefit” shall mean (i) the Payments which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of 1986the first payment of the foregoing), as amended less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the Code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable to the Company (which may be, but will not be required to be, the Company’s independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the affected Executive and the Company within fifteen (15) calendar days after Executive’s date of Separation from Service. If the Accounting Firm determines that such reduction is required by this Section 9(d) and no Payment constitutes non-qualified deferred compensation that is subject to Section 409A of the Code”), Executive, in Executive’s sole and (ii) absolute discretion, may determine which Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable with respect to such excise tax (such excise taxCode, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an shall pay such reduced amount sufficient to reimburse Employee for both (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employeehim. If the accounting firm Accounting Firm determines that no Excise Tax a reduction is payable required by this Section 9(d), and any Payment constitutes a “deferral of compensation” within the meaning of Section 409A of the Code, then the Payments shall be reduced in the following order; (a) reduction in the cash severance payments described herein (with respect such reduction being applied to the Benefitpayments in the reverse order in which they would otherwise be made, it that is, later payments shall furnish be reduced before earlier payments); (b) reduction in any other cash payments payable to Executive (with such reduction being applied to the Company and Employee with an opinion reasonably acceptable to Employee payments in the reverse order in which they would otherwise be made, that no Excise Tax will is, later payments shall be imposed with respect to such Benefit. Any good faith determinations reduced before earlier payments); (c) cancellation of acceleration of vesting on any equity awards for which the exercise price exceeds the then fair market value of the accounting firm made hereunder underlying equity; and (d) cancellation of acceleration of vesting of equity awards not covered under (c) above; provided, however that in the event that acceleration of vesting of equity awards is to be cancelled, such acceleration of vesting shall be finalcancelled in the reverse order of the date of grant of such equity awards, binding and conclusive upon the Company and Employeethat is, later equity awards shall be canceled before earlier equity awards.

Parachute Payments. In Notwithstanding anything to the event that the severance and other benefits provided for contrary in this Agreement, if it is determined (as hereafter provided) that any payment or distribution to or for Key Employee’s benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to Employee or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (the a “BenefitPayment”), determined without regard to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties payable with respect to such excise tax (such excise taxtax or taxes, together with any such interest and penalties, are hereinafter hereafter collectively referred to as the “Excise Tax”), then Key Employee shall be entitled to receive from the Company an additional payment or payments (the a “Gross-Up Payment”) in an amount sufficient to reimburse such that, after payment by Key Employee for both of all taxes (A) such Excise Tax, and (B) the income, excise, employment and including any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company interest or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be penalties imposed with respect to such Benefit. Any good faith determinations taxes), including any Excise Tax, imposed upon the Gross-Up Payment, Key Employee retains an amount of the accounting firm made hereunder Gross-Up Payment equal to the Excise Tax imposed upon the Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Payments shall be finaltreated as “parachute payments” within the meaning of section 28OG(b)(2) of the Code, binding and conclusive upon all “excess parachute payments” within the meaning of section 28OG(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company’s independent auditors and reasonably acceptable to Key Employee such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 28OG(b)(4)(A) of the Code, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of section 28OG(b)(4)(B) of the Code, in excess of the “base amount” (as such term is defined in section 28OG(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, (ii) the amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of excess parachute payments within the meaning of section 28OG(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 Company’s independent auditors in accordance with the principles of sections 28OG(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Key Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Key Employee’s residence on the date of termination, 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 at the time of Key Employee’s termination of employment, Key Employee 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 Key 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 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 Key Employee with respect to such excess) at the time that the amount of such excess is finally determined. Key Employee 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 Severance Payments. Notwithstanding anything in this Agreement to the contrary, in no event shall payments under this Section be made later than the end of Key Employee’s taxable year following the taxable year in which the related Excise Tax is remitted by or on behalf of the Key Employee.

Parachute Payments. In Notwithstanding anything to the event that the severance and other benefits provided for contrary in this Agreement, if it is determined (as hereafter provided) that any payment or distribution to or for Key Employee’s benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to Employee or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (the a “BenefitPayment”), determined without regard to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties payable with respect to such excise tax (such excise taxtax or taxes, together with any such interest and penalties, are hereinafter hereafter collectively referred to as the “Excise Tax”), then Key Employee shall be entitled to receive from the Company an additional payment or payments (the a “Gross-Up Payment”) in an amount sufficient to reimburse such that, after payment by Key Employee for both of all taxes (A) such Excise Tax, and (B) the income, excise, employment and including any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company interest or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be penalties imposed with respect to such Benefit. Any good faith determinations taxes), including any Excise Tax, imposed upon the Gross-Up Payment, Key Employee retains an amount of the accounting firm made hereunder Gross-Up Payment equal to the Excise Tax imposed upon the Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Payments shall be finaltreated as “parachute payments” within the meaning of section 280G(b)(2) of the Code, binding and conclusive upon 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 Company’s independent auditors and reasonably acceptable to Key Employee such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, 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)(B) of the Code, in excess of the “base amount” (as such term is defined in section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, (ii) the amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the 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 Company’s independent auditors in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Key Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Key Employee’s residence on the date of termination, 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 at the time of Key Employee’s termination of employment, Key Employee 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 Key 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 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 Key Employee with respect to such excess) at the time that the amount of such excess is finally determined. Key Employee 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 Severance Payments. Notwithstanding anything in this Agreement to the contrary, in no event shall payments under this Section be made later than the end of Key Employee’s taxable year following the taxable year in which the related Excise Tax is remitted by or on behalf of the Key Employee.

Parachute Payments. In If any payment or benefit the event that the severance and other benefits provided for in Employee would receive from MIKOHN pursuant to this Agreement to Employee or otherwise (the “BenefitPayment”), determined without regard to any additional payment required under this section 4, ) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee shall be entitled to will receive from the Company an additional payment (the “Gross-Up Paymentup”) in an amount sufficient to reimburse Employee for both (A) from MIKOHN such that after taking into account all applicable federal, state and local employment taxes, income taxes, the Excise Tax, Tax and (B) the income, excise, employment and any other all applicable taxes imposed on the Gross Up Payment provided under this Section 4Gross-up (all computed at the highest applicable marginal rate), results in the Employee’s receipt, on an after-tax basis, of the full amount of the Payment. The MIKOHN’s principal outside accounting firm engaged or principal outside tax advisors, as selected by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear MIKOHN and Employee, will make all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder and shall provide its calculations, together with detailed supporting documentation, to MIKOHN and the Company and to Employee within fifteen (15) calendar days after the date on which the Employee’s right to the Benefit a Payment is triggered (if requested at that time by the Company MIKOHN or by Employee) or such other time as requested by MIKOHN or the Company or by Employee. If the The accounting firm determines that no Excise Tax is payable with respect to the Benefit, it or tax advisors shall furnish MIKOHN and the Company and Employee with an opinion reasonably acceptable to the Employee that no regarding the application of the Excise Tax will be imposed with respect to such BenefitPayment. Any good faith determinations of MIKOHN shall be entitled to rely upon the accounting firm made hereunder firm’s or tax advisors’ determinations, as applicable, which shall be final, binding and conclusive upon the Company on Employee and EmployeeMIKOHN.

Parachute Payments. In the event that the severance and other benefits provided for Notwithstanding anything contained in this Agreement to Employee the contrary, to the extent that payments and benefits provided under this Agreement or otherwise (including the acceleration of vesting of equity awards) to Executive (such payments or benefits are collectively referred to as the “Payments”) would be subject to the excise tax (the “BenefitExcise Tax”) imposed under Section 4999 of the Code, the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to Executive shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by Executive shall exceed the net after-tax benefit received by him if no such reduction was made. For purposes of this Section 9(d), determined without regard to any additional payment required under this section 4, would “net after-tax benefit” shall mean (i) the Payments which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of 1986the first payment of the foregoing), as amended less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the Code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable to the Company (which may be, but will not be required to be, the Company's independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the affected Executive and the Company within fifteen (15) calendar days after Executive's date of Separation from Service. If the Accounting Firm determines that such reduction is required by this Section 9(d) and no Payment constitutes non-qualified deferred compensation that is subject to Section 409A of the Code”), Executive, in Executive's sole and (ii) absolute discretion, may determine which Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable with respect to such excise tax (such excise taxCode, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an shall pay such reduced amount sufficient to reimburse Employee for both (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employeehim. If the accounting firm Accounting Firm determines that no Excise Tax a reduction is payable required by this Section 9(d), and any Payment constitutes a “deferral of compensation” within the meaning of Section 409A of the Code, then the Payments shall be reduced in the following order; (a) reduction in the cash severance payments described herein (with respect such reduction being applied to the Benefitpayments in the reverse order in which they would otherwise be made, it that is, later payments shall furnish be reduced before earlier payments); (b) reduction in any other cash payments payable to Executive (with such reduction being applied to the Company and Employee with an opinion reasonably acceptable to Employee payments in the reverse order in which they would otherwise be made, that no Excise Tax will is, later payments shall be imposed with respect to such Benefit. Any good faith determinations reduced before earlier payments); (c) cancellation of acceleration of vesting on any equity awards for which the exercise price exceeds the then fair market value of the accounting firm made hereunder underlying equity; and (d) cancellation of acceleration of vesting of equity awards not covered under (c) above; provided, however that in the event that acceleration of vesting of equity awards is to be cancelled, such acceleration of vesting shall be finalcancelled in the reverse order of the date of grant of such equity awards, binding and conclusive upon the Company and Employeethat is, later equity awards shall be canceled before earlier equity awards.

Parachute Payments. In (a) Notwithstanding anything contained herein to the event that contrary, any payment or benefit received or to be received by Executive, whether payable pursuant to the severance and other benefits provided for in terms of this Agreement to Employee or any other plan, arrangements, award agreement or other agreement with the Company or any Affiliate of the Company (collectively, the “BenefitTotal Payments”), determined without regard shall be reduced to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G least extent necessary so that no portion of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) Total Payments shall be subject to the excise tax imposed by Section 4999 of the Code Code, but only if, by reason of such reduction, the Net After-Tax Benefit (as defined below) received by Executive as a result of such reduction will exceed the Net After-Tax Benefit that would have been received by Executive if no such reduction was made. If excise taxes may apply to the Total Payments, the foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by the Company and reasonably acceptable to Executive. The Company will direct the Accounting Firm to submit any such determinations and detailed supporting calculations to both Executive and the Company not less than fifteen (15) days before the date on which a payment becomes due. (b) If the Accounting Firm determines that a reduction in payments is required pursuant to this Section 13, cash benefits shall first be reduced, followed by a reduction of non-cash payments, including option or stock award vesting acceleration, in each case, beginning with payments that would be made last in time and only to the least extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay or provide such reduced amounts to Executive in accordance with the terms of this Agreement or any interest other applicable plan, arrangement or penalties payable agreement governing such payments. (c) If applicable, Executive and the Company will each provide the Accounting Firm access to and copies of any books, records and documents in their respective possession, reasonably requested by the Accounting Firm, and otherwise cooperate with respect to such excise tax the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 13. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 13 will be borne by the Company. (such excise taxd) For purposes of this Section 13, together with any such interest and penalties, are hereinafter collectively referred to as “Net After-Tax Benefit” means (i) the “Excise Tax”), then Employee shall be Total Payments that Executive becomes entitled to receive from the Company an additional payment or any Affiliate of the Company which would constitute “parachute payments” within the meaning of Code Section 280G, less (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (Bii) the incomeamount of all federal, excise, state and local income and employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged payable by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses Executive with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make Total Payments, calculated at the determinations hereunder shall provide its calculationsmaximum applicable marginal income tax rate, together with detailed supporting documentation, to less (iii) the Company and to Employee within fifteen (15) calendar days after the date amount of excise taxes imposed on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable Executive with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations Total Payments under Section 4999 of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeCode.

Parachute Payments. In (i) It is the objective of this Agreement to maximize Executive’s Net After-Tax Benefit (as defined herein) if payments or benefits provided under this Agreement are subject to excise tax under Section 4999 of the Code. Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit by the severance and other benefits provided Company or otherwise to or for in the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (all such payments and benefits, including the payments and benefits under Section 3(a) and Section 3(b) hereof, being hereinafter referred to Employee (as the “BenefitTotal Payments”), determined without regard to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee the cash severance payments shall first be reduced, and the non-cash severance payments shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments shall be entitled subject to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and but only if (Bi) the incomenet amount of such Total Payments, exciseas so reduced (and after subtracting the net amount of federal, employment state and any other local income taxes imposed on such reduced Total Payments and after taking into account the Gross Up Payment provided under this Section 4. phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). (ii) The accounting firm engaged Total Payments shall be reduced by the Company for general audit purposes as in the following order: (i) reduction of any cash severance payments otherwise payable to Executive that are exempt from Section 409A of the day prior Code, (ii) reduction of any other cash payments or benefits otherwise payable to Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to the effective date acceleration of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses vesting or payments with respect to any equity award with respect to the determinations by such accounting firm required Parent’s common stock that is exempt from Section 409A of the Code, (iii) reduction of any other payments or benefits otherwise payable to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date Executive on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) a pro-rata basis or such other time as requested by manner that complies with Section 409A of the Company or by Employee. If Code, but excluding any payments attributable to the accounting firm determines that no Excise Tax is payable acceleration of vesting and payments with respect to any equity award with respect to the BenefitParent’s common stock that are exempt from Section 409A of the Code, it shall furnish and (iv) reduction of any payments attributable to the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed acceleration of vesting or payments with respect to such Benefit. Any good faith determinations any other equity award with respect to the Parent’s common stock that are exempt from Section 409A of the Code. (iii) All determinations regarding the application of this Section 3(h) shall be made by an accounting firm made hereunder with experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax selected by the Company (“Independent Advisors”). For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be finaltaken into account, binding (ii) no portion of the Total Payments shall be taken into account which, in the opinion of the Independent Advisors, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation and conclusive upon (iii) the Company value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and Employee(4) of the Code. The costs of obtaining such determination and all related fees and expenses (including related fees and expenses incurred in any later audit) shall be borne by the Company. (iv) In the event it is later determined that a greater reduction in the Total Payments should have been made to implement the objective and intent of this Section 3(h), the excess amount shall be returned immediately by Executive to the Company, plus interest at a rate equal to 120% of the semi-annual applicable federal rate as in effect at the time of the Change in Control.

Parachute Payments. In a. It is the objective of this Agreement to maximize Employee’s net after-tax benefit if payments or benefits provided under this Agreement are subject to excise tax under Section 4999 of the Code. Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit by the severance and other benefits provided Corporation or otherwise to or for in the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (all such payments and benefits being hereinafter referred to Employee (as the “BenefitTotal Payments”), determined without regard to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee the Total Payments shall be entitled reduced to receive from the Company an additional payment (extent necessary so that no portion of the “Gross-Up Payment”) in an amount sufficient Total Payments shall be subject to reimburse Employee for both (A) such the Excise Tax, and but only if (Bi) the incomenet amount of such Total Payments, exciseas so reduced (and after subtracting the net amount of federal, state and local income and employment taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes on such Total Payments and the amount of the Excise Tax to which Employee would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). b. The Total Payments shall be reduced by the Corporation in the following order: (i) reduction of any cash severance-related payments otherwise payable to Employee that are exempt from Section 409A of the Code, (ii) reduction of any other taxes imposed on the Gross Up Payment provided under this cash payments or benefits otherwise payable to Employee that are exempt from Section 4. The accounting firm engaged by the Company for general audit purposes as 409A of the day prior Code, but excluding any payments attributable to the effective date acceleration of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses vesting or payments with respect to any equity award with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make Corporation’s common stock that is exempt from Section 409A of the determinations hereunder shall provide its calculationsCode, together with detailed supporting documentation, to the Company and (iii) reduction of any other payments or benefits otherwise payable to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) a pro-rata basis or such other time as requested by manner that complies with Section 409A of the Company or by Employee. If Code, but excluding any payments attributable to the accounting firm determines that no Excise Tax is payable acceleration of vesting and payments with respect to any equity award with respect to the BenefitCorporation’s common stock that are exempt from Section 409A of the Code, it shall furnish and (iv) reduction of any payments attributable to the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed acceleration of vesting or payments with respect to such Benefit. Any any other equity award with respect to the Corporation’s common stock that are exempt from Section 409A of the Code. c. All determinations regarding the application of this Section 23 shall be made by an accounting firm with experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax reasonably selected in good faith determinations by the Corporation (“Independent Advisors”), a copy of which report and all worksheets and background materials relating thereto shall be provided to Employee. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the accounting firm made hereunder Total Payments the receipt or enjoyment of which Employee shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be finaltaken into account; (ii) no portion of the Total Payments shall be taken into account which, binding in the opinion of the Independent Advisors, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and conclusive upon (iii) the Company value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and Employee(4) of the Code. The costs of obtaining such determination and all related fees and expenses (including related fees and expenses incurred in any later audit) shall be borne solely by the Corporation.

Parachute Payments. In the event that any of the severance payments and other benefits provided for in by this Agreement or otherwise payable to Employee Executive (the “Benefit”), determined without regard to any additional payment required under this section 4, would (ia) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (iib) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee Executive’s severance payments and benefits under this Agreement or otherwise shall be entitled payable either in full or in such lesser amount which would result in no portion of such severance payments or benefits being subject to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the Excise Tax, results in the receipt by Executive, on an after-tax basis, of the greatest amount of severance payments and benefits under this Agreement or otherwise, notwithstanding that all or some portion of such severance payments or benefits may be taxable under Section 4999 of the Code. Any reduction in the severance payments and benefits required by this Section shall be made in the following order: (i) reduction of cash payments; (ii) reduction of accelerated vesting of equity awards other than stock options; (iii) reduction of accelerated vesting of stock options; and (Biv) the income, excise, employment and any reduction of other taxes imposed on the Gross Up Payment benefits paid or provided under this Section 4to Executive. The accounting calculations in Section 4 will be performed by the professional firm engaged by the Company for general audit tax purposes as of the day prior to the effective date of the Change of Control event that might reasonably be anticipated to result in severance payments and benefits that would otherwise be subject to the Excise Tax. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquiring company, the Company shall perform appoint a nationally recognized tax firm to make the foregoing calculationsdeterminations required by this Section. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunderby this Section 4. The accounting Company and Executive shall furnish such tax firm engaged such information and documents as the tax firm may reasonably request in order to make the determinations hereunder shall its required determination. The tax firm will provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time Executive as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefitsoon as practicable following its engagement. Any good faith determinations of the accounting tax firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeExecutive. As a result of the uncertainty in the application of Sections 409A, 280G or 4999 of the Code at the time of the initial determination by the professional tax firm described in this Section 4, it is possible that the Internal Revenue Service (the “IRS”) or other agency will claim that an Excise Tax greater than that amount, if any, determined by such professional firm for the purposes of Section 4 is due (the “Additional Excise Tax”). Executive shall notify the Company in writing of any claim by the IRS or other agency that, if successful, would require payment of Additional Excise Tax. 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 payments made or due to Executive. The Company shall pay all reasonable fees, expenses and penalties of Executive relating to a claim by the IRS or other agency. In the event it is finally determined that a further reduction would have been required under Section 4 to place Executive in a better after-tax position, Executive shall repay the Company such amount within 30 days thereof in order to effect such result.

Parachute Payments. In the event that the severance any payments and other benefits provided for in this Agreement or otherwise payable to Employee (the “Benefit”), determined without regard to any additional payment required under this section 4, would (i) Executive constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”)and, and (ii) but for this paragraph, would be subject to the excise tax imposed by Section 4999 of the Code Code, then any post-termination severance payments and benefits payable under this Agreement or any interest otherwise will be either (1) delivered in full or penalties payable with respect (2) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. If a reduction in Executive’s payments and benefits is necessitated by the preceding sentence, such reduction will occur in the following order: (such excise taxi) any cash severance based on a multiple of base salary or annual bonus, together with (ii) any such interest other cash amounts payable to Executive, (iii) benefits valued as parachute payments, and penalties(iv) acceleration of vesting of any equity awards. Unless the Company and Executive otherwise agree in writing, are hereinafter collectively referred to as any determination required under this paragraph will be made in writing by the Company’s or its affiliates’ independent public accountants (the “Excise TaxFirm”), then Employee shall whose determination will be entitled to receive from conclusive and binding upon Executive and the Company an additional payment (Company. For purposes of making the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Taxcalculations required by this paragraph, the Firm may make reasonable assumptions and (B) approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the income, excise, employment application of Sections 280G and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as 4999 of the day prior to the effective date of the Change of Control shall perform the foregoing calculationsCode. The Company shall and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this paragraph. The Company will bear all expenses costs the Firm may incur in connection with respect to the determinations any calculations contemplated by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeethis paragraph.

Parachute Payments. In (a) If it is determined (as hereafter provided) that by reason of any payment or Option vesting occurring pursuant to the event that the severance and other benefits provided for in terms of this Agreement to Employee (the or otherwise under any other agreement, plan or program) upon a Change in Control (collectively, a “BenefitPayment”), determined without regard to any additional payment required under this section 4, the Executive would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Code Section 4999 of the Code or any interest or penalties payable with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Parachute Tax”), then Employee the Executive shall be entitled to receive from the Company an additional payment or payments (the a “Gross-Up Payment”) in an amount sufficient such that, after payment by the Executive of all taxes (including any Parachute Tax) imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to reimburse Employee for the Parachute Tax imposed upon the Payment. (b) Subject to the provisions of Section 7(a) hereof, all determinations required to be made under this Section 7, including whether a Parachute Tax is payable by the Executive and the amount of such Parachute Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by the nationally recognized firm of certified public accountants (the “Accounting Firm”) used by the Employer prior to the Change in Control (or, if such Accounting Firm declines to serve, the Accounting Firms hall be a nationally recognized firm of certified public accountants selected by the Executive). The Accounting Firm shall be directed by the Employer or the Executive to submit its preliminary determination and detailed supporting calculations to both (A) such Excise Taxthe Employer and the Executive within 15 calendar days after the determination date, and (B) the incomeif applicable, excise, employment and any other taxes imposed on such time or times as may be requested by the Gross Employer or the Executive. If the Accounting Firm determines that any Parachute Tax is payable by the Executive, the Employer shall pay the required Gross-Up Payment provided under this Section 4to, or for the benefit of, the Executive within five business days after receipt of such determination and calculations. The accounting firm engaged If the Accounting Firm determines that no Parachute Tax is payable by the Company for general audit purposes Executive, it shall, at the same time as it makes such determination, furnish the Executive with an opinion that he has substantial authority not to report any Parachute Tax on his federal tax return. Any good faith determination by the Accounting Firm as to the amount of the day prior Gross-Up Payment shall be binding upon the Employer and the Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce the Employer’s obligation to the effective date provide any Gross-Up Payments that shall be due as a result of such contrary determination. As a result of the Change uncertainty in the application of Control shall perform Code Section 4999 at the foregoing calculations. The Company shall bear all expenses time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Employer should have been made (an “Underpayment”), consistent with respect to the determinations by such accounting firm calculations required to be made hereunder. The accounting firm engaged In the event that the Employer exhausts or fails to pursue its remedies pursuant to Section 7(f) hereof and the Executive thereafter is required to make a payment of any Parachute Tax, the determinations hereunder Executive shall direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Employer and the Executive as promptly as possible. Any such Underpayment shall be promptly paid by the Employer to, or for the benefit of, the Executive within five business days after receipt of such determination and calculations. (c) The Employer and the Executive shall provide its calculationsthe Accounting Firm access to and copies of any books, together records and documents in the possession of the Employer or the Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with detailed supporting documentation, the Accounting Firm in connection with the preparation and issuance of the determination contemplated by Section 7(b) hereof. (d) The federal tax returns filed by the Executive (or any filing made by a consolidated tax group which includes the Employer) shall be prepared and filed on a basis consistent with the determination of the Accounting Firm with respect to the Company Parachute Tax payable by the Executive. The Executive shall make proper payment of the amount of any Parachute Tax, and at the request of the Employer, provide to Employee the Employer true and correct copies (with any amendments) of his federal income tax return as filed with the Internal Revenue Service, and such other documents reasonably requested by the Employer, evidencing such payment. If prior to the filing of the Executive’s federal income tax return, the Accounting Firm determines in good faith that the amount of the Gross-Up Payment should be reduced, the Executive shall within fifteen five business days pay to the Employer the amount of such reduction. (15e) calendar The fees and expenses of the Accounting Firm for its services in connection with the determination and calculations contemplated by Sections 7(b) and (d) hereof shall be borne by the Employer. If such fees and expenses are initially advanced by the Executive, the Employer shall reimburse the Executive the full amount of such fees and expenses within five business days after receipt from the Executive of a statement therefore and reasonable evidence of his payment thereof. (f) In the event that the Internal Revenue Service claims that any payment or benefit received under this Agreement constitutes an “excess parachute payment” within the meaning of Code Section 280G(b)(1), the Executive shall notify the Employer in writing of such claim. Such notification shall be given as soon as practicable but not later than 10 business days after the Executive is informed in writing of such claim and shall apprise the Employer of the nature of such claim and the date on which Employee’s right such claim is requested to be paid. The Executive shall not pay such claim prior to the Benefit is triggered expiration of the 30 day period following the date on which the Executive gives such notice to the Employer (if requested at that time by the Company or by Employee) or such other time as shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Employer notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall (i) give the Employer any information reasonably requested by the Company or by Employee. If Employer relating to such claim; (ii) take such action in connection with contesting such claim as the accounting firm determines that no Excise Tax is payable Employer shall reasonably request in writing from time to time, including without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the BenefitEmployer and reasonably satisfactory to the Executive; (iii) cooperate with the Employer in good faith in order to effectively contest such claim; and (iv) permit the Employer to participate in any proceedings relating to such claim; PROVIDED, it HOWEVER, that the Employer shall furnish bear and pay directly all costs and expenses (including, but not limited to, additional interest and penalties and related legal, consulting or other similar fees) incurred in connection with such contest and shall indemnify and hold the Company Executive harmless, on an after-tax basis, for and Employee against for any Parachute Tax or income tax or other tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (g) The Employer shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sxx for a refund or contest the claim in any permissible manner and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Employer shall determine; PROVIDED, HOWEVER, that if the Employer directs the Executive to pay such claim and sxx for a refund, the Employer shall advance the amount of such payment to the Executive on an opinion reasonably acceptable to Employee that no Excise interest-free basis, and shall indemnify and hold the Executive harmless, on an after tax basis, from any Parachute Tax will be (or other tax, including interest and penalties with respect thereto) imposed with respect to such Benefitadvance or with respect to any imputed income with respect to such advance; and PROVIDED, FURTHER, that if the Executive is required to extend the statute of limitations to enable the Employer to contest such claim, the Executive may limit this extension solely to such contested amount. Any good faith determinations The Employer’s control of the accounting firm made hereunder contest shall be finallimited to issues with respect to which a corporate deduction would be disallowed pursuant to Code Section 280G and the Executive shall be entitled to settle or contest, binding as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. In addition, no position may be taken nor any final resolution be agreed to by the Employer without the Executive’s consent if such position or resolution could reasonably be expected to adversely affect the Executive unrelated to matters covered hereto. (h) If, after the receipt by Executive of an amount advanced by the Employer in connection with the contest of the Parachute Tax claim, the Executive receives any refund with respect to such claim, the Executive shall promptly pay to the Employer the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto); PROVIDED, HOWEVER, if the amount of that refund exceeds the amount advanced by the Employer, the Executive may retain such excess. If, after the receipt by the Executive of an amount advanced by the Employer in connection with a Parachute Tax claim, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and conclusive upon the Company and EmployeeEmployer does not notify the Executive in writing of its intent to contest the denial of such refund prior to the expiration of 30 days after such determination, such advance shall be deemed to be in consideration for services rendered after the Date of Termination.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Employee (the “Benefit”), determined without regard to any additional payment required under this section 4, would you (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this subparagraph, would be subject to the excise tax imposed by Section 4999 of the Code Code, then the severance benefits under will be either: (a) delivered in full, or any interest or penalties payable with respect (b) delivered as to such lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless you and the Company otherwise agree in writing, any determination required under this subparagraph will be made in writing by the Company’s public accountants immediately prior to any change of control or such other person or entity to which the parties mutually agree (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise TaxAccountants”), then Employee shall whose determination will be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, conclusive and (B) the income, excise, employment binding upon you and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit all purposes. For purposes as of making the calculations required by this subparagraph, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable good faith interpretations concerning the application of Sections 280G and 4999 of the day prior Code. You and the Company will furnish to the effective date of Accountants such information and documents as the Change of Control shall perform the foregoing calculationsAccountants may reasonably request in order to make a determination under this subparagraph. The Company shall will bear all expenses costs the Accountants may incur in connection with respect to the determinations any calculations contemplated by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeethis subparagraph.

Parachute Payments. In (a) It is the event that the severance and other benefits provided for in objective of this Agreement to Employee (the “Benefit”), determined without regard to any additional payment required maximize Executive’s net after-tax benefit if payments or benefits provided under this section 4, would (i) constitute “parachute payments” within the meaning of Agreement are subject to excise tax under Section 280G 4999 of the Internal Revenue Code of 1986, as amended amended, and the regulations and guidance promulgated thereunder (the “Code”). Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit by the Company or otherwise to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (all such payments and (iibenefits, including the payments under Section 4(b) hereof, being hereinafter referred to as the “Total Payments”), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee the Total Payments shall be entitled reduced to receive from the Company an additional payment (extent necessary so that no portion of the “Gross-Up Payment”) in an amount sufficient Total Payments shall be subject to reimburse Employee for both (A) such the Excise Tax, and but only if (Bi) the incomenet amount of such Total Payments, exciseas so reduced (and after subtracting the net amount of federal, state and local income and employment taxes on such reduced Total Payments and any other after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes imposed on such Total Payments and the Gross Up Payment provided under this Section 4. amount of the Excise Tax to which Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). (b) The accounting firm engaged Total Payments shall be reduced by the Company for general audit purposes as in the following order: (i) reduction of any cash severance payments otherwise payable to Executive that are exempt from Section 409A of the day prior Code (“Section 409A”), (ii) reduction of any other cash payments or benefits otherwise payable to Executive that are exempt from Section 409A, but excluding any payments attributable to the effective date acceleration of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses vesting or payments with respect to any equity award with respect to the determinations by such accounting firm required Company’s common stock that is exempt from Section 409A, (iii) reduction of any other payments or benefits otherwise payable to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date Executive on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) a pro-rata basis or such other time as requested by manner that complies with Section 409A, but excluding any payments attributable to the Company or by Employee. If the accounting firm determines that no Excise Tax is payable acceleration of vesting and payments with respect to any equity award with respect to the BenefitCompany’s common stock that are exempt from Section 409A, it and (iv) reduction of any payments attributable to the acceleration of vesting or payments with respect to any other equity award with respect to the Company’s common stock that are exempt from Section 409A. (c) All determinations regarding the application of this Section 5 shall furnish be made by an accounting firm with experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax selected by the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax Executive (“Independent Advisors”), a copy of which report and all worksheets and background materials relating thereto shall be provided to Executive. For purposes of determining whether and the extent to which the Total Payments will be imposed with respect subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the opinion of the Independent Advisors, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such Benefit. Any good faith determinations reasonable compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the accounting firm made hereunder Code. The costs of obtaining such determination and all related fees and expenses (including related fees and expenses incurred in any later audit) shall be final, binding and conclusive upon borne solely by the Company and EmployeeCompany.

Parachute Payments. In (a) It is the event that the severance and other benefits provided for in objective of this Agreement to Employee maximize Executive’s Net After-Tax Benefit (the “Benefit”), determined without regard to any additional payment required as defined herein) if payments or benefits provided under this section 4, would (i) constitute “parachute payments” within the meaning of Agreement are subject to excise tax under Section 280G 4999 of the Internal Revenue Code of 1986, as amended amended, and the regulations and guidance promulgated thereunder (the “Code”). Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit by the Company or otherwise to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (all such payments and (iibenefits, including the payments and benefits under Section 4(b) and Section 4(c) hereof, being hereinafter referred to as the “Total Payments”), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee the Total Payments shall be entitled reduced to receive from the Company an additional payment (extent necessary so that no portion of the “Gross-Up Payment”) in an amount sufficient Total Payments shall be subject to reimburse Employee for both (A) such the Excise Tax, and but only if (Bi) the incomenet amount of such Total Payments, exciseas so reduced (and after subtracting the net amount of federal, state and local income and employment taxes on such reduced Total Payments and any other after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes imposed on such Total Payments and the Gross Up Payment provided under this Section 4. amount of Excise Tax to which Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). (b) The accounting firm engaged Total Payments shall be reduced by the Company for general audit purposes as in the following order: (i) reduction of any cash severance payments otherwise payable to Executive that are exempt from Section 409A of the day prior Code (“Section 409A”), (ii) reduction of any other cash payments or benefits otherwise payable to Executive that are exempt from Section 409A, but excluding any payments attributable to the effective date acceleration of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses vesting or payments with respect to any equity award with respect to the determinations by such accounting firm required Company’s common stock that is exempt from Section 409A, (iii) reduction of any other payments or benefits otherwise payable to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date Executive on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) a pro-rata basis or such other time as requested by manner that complies with Section 409A, but excluding any payments attributable to the Company or by Employee. If the accounting firm determines that no Excise Tax is payable acceleration of vesting and payments with respect to any equity award with respect to the BenefitCompany’s common stock that are exempt from Section 409A, it and (iv) reduction of any payments attributable to the acceleration of vesting or payments with respect to any other equity award with respect to the Company’s common stock that are exempt from Section 409A. (c) All determinations regarding the application of this Section 5 shall furnish be made by an accounting firm with experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax selected by the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax Executive (“Independent Advisors”), a copy of which report and all worksheets and background materials relating thereto shall be provided to Executive. For purposes of determining whether and the extent to which the Total Payments will be imposed with respect subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the opinion of the Independent Advisors, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such Benefit. Any good faith determinations reasonable compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the accounting firm made hereunder Code. The costs of obtaining such determination and all related fees and expenses (including related fees and expenses incurred in any later audit) shall be final, binding and conclusive upon borne solely by the Company and EmployeeCompany.

Parachute Payments. In the event that the severance and other benefits provided for Anything in this Agreement to the contrary notwithstanding, if any payment or benefit the Employee would receive from the Company or an affiliate of the Company pursuant to this Agreement or otherwise (the a “BenefitPayment”), determined without regard to any additional payment required under this section 4, ) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee such Payment shall be entitled equal to receive from the Company Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion of the Payment, up to and including the total Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the Employee’s receipt, on an additional payment (after-tax basis, of the “Gross-Up Payment”) in an greater amount sufficient of the Payment notwithstanding that all or some portion of the Payment may be subject to reimburse Employee for both (A) such the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, and (B) reduction shall occur in the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4following order: reduction of cash payments; reduction of employee benefits. The Company shall appoint a nationally recognized independent accounting firm engaged by to make the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculationsdeterminations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to the Employee within fifteen (15) calendar days after the date on which the Employee’s right to the Benefit a Payment is triggered (if requested at that time by the Company or by the Employee) or such other time as requested by the Company or by the Employee. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the Benefitapplication of the Reduced Amount, it shall furnish the Company and the Employee with an opinion reasonably acceptable to the Employee that no Excise Tax will be imposed with respect to such BenefitPayment. Any good faith determinations of The Company shall be entitled to rely upon the accounting firm made hereunder firm’s determinations, which shall be final, final and binding and conclusive upon the Company and Employeeon all persons.

Parachute Payments. In (a) Notwithstanding anything contained herein to the event that contrary, any payment or benefit received or to be received by Executive, whether payable pursuant to the severance and other benefits provided for in terms of this Agreement to Employee or any other plan, arrangements or agreement with the Company or any Affiliate of the Company (collectively, the “BenefitTotal Payments”), determined without regard shall be reduced to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G least extent necessary so that no portion of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) Total Payments shall be subject to the excise tax imposed by Section 4999 of the Code Code, but only if, by reason of such reduction, the Net After-Tax Benefit (as defined below) received by Executive as a result of such reduction will exceed the Net After-Tax Benefit that would have been received by Executive if no such reduction was made. If excise taxes may apply to the Total Payments, the foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by the Company and reasonably acceptable to Executive. The Company will direct the Accounting Firm to submit any such determinations and detailed supporting calculations to both Executive and the Company not less than fifteen (15) days before the date on which a payment becomes due. (b) If the Accounting Firm determines that a reduction in payments is required pursuant to this Section 14, cash benefits shall first be reduced, followed by a reduction of non-cash payments, including option or stock award vesting acceleration, in each case, beginning with payments that would be made last in time and only to the least extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay or provide such reduced amounts to Executive in accordance with the terms of this Agreement or any interest other applicable plan, arrangement or penalties payable agreement governing such payments. (c) If applicable, Executive and the Company will each provide the Accounting Firm access to and copies of any books, records and documents in their respective possession, reasonably requested by the Accounting Firm, and otherwise cooperate with respect to such excise tax the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 14. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 14 will be borne by the Company. (such excise taxd) For purposes of this Section 14, together with any such interest and penalties, are hereinafter collectively referred to as “Net After-Tax Benefit” means (i) the “Excise Tax”), then Employee shall be Total Payments that Executive become entitled to receive from the Company an additional payment or any Affiliate of the Company which would constitute “parachute payments” within the meaning of Code Section 280G, less (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (Bii) the incomeamount of all federal, excise, state and local income and employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged payable by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses Executive with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make Total Payments, calculated at the determinations hereunder shall provide its calculationsmaximum applicable marginal income tax rate, together with detailed supporting documentation, to less (iii) the Company and to Employee within fifteen (15) calendar days after the date amount of excise taxes imposed on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable Executive with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations Total Payments under Section 4999 of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeCode.

Parachute Payments. In Notwithstanding anything contained in this Agreement to the contrary, in the event that the severance compensation and other benefits provided for in this Agreement to Employee together with all other payments and the value of any benefit received or to be received by Employee: (the “Benefit”), determined without regard to any additional payment required under this section 4, would (ia) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended and (the “Code”)b) but for this Section, and (ii) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties Code, the Employee’s compensation and benefits pursuant to the terms of this Agreement shall be payable with respect either: (i) in full, or (ii) in such lesser amount which would result in no portion of such compensation and benefits being subject to such excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Employee on an after-tax basis, of the greatest amount of compensation and benefits under this Agreement, notwithstanding that all or some portion of such compensation and benefits may be subject to the excise tax imposed under Section 4999 of the Code. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by the Company’s independent public accountants serving immediately before the Change in Control (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise TaxAccountants”), then Employee whose determination shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount sufficient to reimburse conclusive and binding upon Employee for both (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit all purposes. For purposes as of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable good faith interpretations concerning the applications of Section 280G and 4999 of the day prior Code. The Company shall cause the Accountants to provide detailed supporting calculations of its determination to Employee and the Company. Employee and the Company shall furnish to the effective date of Accountants such information and documents as the Change of Control shall perform the foregoing calculationsAccountants may reasonably request in order to make a determination under this Section. The Company shall bear all expenses costs the Accountants may reasonably incur in connection with respect to the determinations any calculations contemplated by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeethis Section 5.

Parachute Payments. In (a) Notwithstanding anything to the event that the severance and other benefits provided for contrary contained in this Agreement, to the extent that any amount, stock option, restricted stock, RSUs, other equity awards or benefits paid or distributed to the Executive pursuant to this Agreement to Employee or any other agreement or arrangement between the Company and the Executive (collectively, the “Benefit”), determined without regard to any additional payment required under this section 4, would "280G Payments") (ia) constitute “a "parachute payments” payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (iib) but for this Section 21, would be subject to the excise tax imposed by Section 4999 of the Code Code, then the 280G Payments shall be payable either (i) in full or any interest or penalties payable with respect (ii) in such lesser amount which would result in no portion of such 280G Payments being subject to such excise tax under Section 4999 of the Code; whichever of the foregoing amounts, taking into account the applicable federal, state and local income or excise taxes (including the excise tax imposed by Section 4999) results in the Executive’s receipt on an after-tax basis, of the greatest amount of benefits under this Agreement, notwithstanding that all or some portion of such excise tax, together with any such interest benefits may be taxable under Section 4999 of the Code. Unless the Executive and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) otherwise agree in an amount sufficient to reimburse Employee for both (A) such Excise Taxwriting, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided determination required under this Section 4. The accounting firm engaged shall be made in writing by an independent public accountant selected by the Company (the "Accountants"), whose determination shall be conclusive and binding upon the Executive and the Company for general audit all purposes. For purposes as of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the day prior Code. The Company and the Executive shall furnish to the effective date of Accountants such information and documents as the Change of Control shall perform the foregoing calculationsAccountants may reasonably request in order to make a determination under this Section. The Company shall bear all expenses costs the Accountants may reasonably incur in connection with respect to any calculations contemplated by this Section, as well as any reasonable legal or accountant expenses, or any additional taxes, that the determinations Executive may incur as a result of any calculation errors made by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to Accountant and/or the Company and to Employee within fifteen (15) calendar days after in connection with the date on which Employee’s right to the Benefit is triggered (if requested at that time Code Section 4999 excise tax analysis contemplated by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeethis Section.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement to Employee (the “"Benefit”"), determined without regard to any additional payment required under this section 4, would (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”"), and (ii) be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee shall be entitled to receive from the Company an additional payment (the “"Gross-Up Payment”") in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s 's right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employee.

Parachute Payments. In Notwithstanding anything to the contrary herein or in any Benefit Plan, in the event it shall be determined that any monetary amounts or benefits due or payable by the severance and other benefits provided for in this Agreement Company to Employee Executive (the “Benefit”)whether paid or payable, determined without regard or due or distributed) are or will become subject to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by under Section 4999 of the Code or any interest or penalties payable with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise TaxTaxes”), then Employee the amounts or benefits otherwise due or payable to Executive pursuant to this Agreement or any Benefit Plans shall be entitled reduced to receive from the Company an additional payment extent necessary so that no portion of such amounts or benefits shall be subject to the Excise Taxes, but only if (i) the “Gross-Up Payment”net amount of such amounts and benefits, as so reduced (and after the imposition of the total amount of taxes under federal, state and local law on such amounts and benefits), is greater than (ii) in an amount sufficient to reimburse Employee for both the excess of (A) the net amount of such Excise Taxamounts and benefits, without reduction (but after imposition of the total amount of taxes under federal, state and local law) over (B) the income, excise, employment amount of Excise Taxes to which Executive would be subject on such unreduced amounts and any other taxes benefits. If it is determined that Excise Taxes will or might be imposed on Executive in the Gross Up Payment provided under absence of such reduction, the Company and Executive shall make good faith efforts to seek to identify and pursue reasonable action to avoid or reduce the amount of Excise Taxes; provided, however, that this sentence shall not be construed to require Executive to accept any further reduction in the amount or benefits that would be payable to him in the absence of this sentence. The provisions of this Section 47(d) shall override and control any inconsistent provision in the Xxxxxx Products, Inc. Long-Term Capital Accumulation Plan. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the All determinations by such accounting firm required to be made hereunder. The under this Section 7(d), including whether reduction is required, the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made in good faith by an independent accounting firm engaged selected by the Company in accordance with applicable law (the “Accounting Firm”), in consultation with tax counsel reasonably acceptable to Executive. In the event that such Accounting Firm is serving as accountant or auditor for the individual, entity or group acting as the acquirer in a Change in Control, the Company shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall provide its calculations, together with detailed supporting documentation, then be referred to herein as the Company Accounting Firm). All fees and to Employee within fifteen (15) calendar days after expenses of the date on which Employee’s right to the Benefit is triggered (if requested at that time Accounting Firm shall be borne solely by the Company or by Employee) or such other time as requested by the Company or by EmployeeCompany. If the accounting firm Accounting Firm determines that no Excise Tax excise tax under Section 4999 of the Code is payable with respect to the Benefitby Executive, it shall furnish the Company and Employee shall request that the Accounting Firm furnish Executive with an opinion reasonably acceptable written guidance that failure to Employee that no Excise Tax will be imposed with respect to report such Benefit. Any good faith determinations excise tax on Executive’s applicable federal income tax return would not result in the imposition of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeea negligence or similar penalty.

Parachute Payments. In (a) Notwithstanding anything contained herein to the event that contrary, any payment or benefit received or to be received by Executive, whether payable pursuant to the severance and other benefits provided for in terms of this Agreement to Employee or any other plan, arrangements or agreement with the Company or any Affiliate of the Company (collectively, the “BenefitTotal Payments”), determined without regard shall be reduced to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G least extent necessary so that no portion of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) Total Payments shall be subject to the excise tax imposed by Section 4999 of the Code Code, but only if, by reason of such reduction, the Net After-Tax Benefit (as defined below) received by Executive as a result of such reduction will exceed the Net After-Tax Benefit that would have been received by Executive if no such reduction was made. If excise taxes may apply to the Total Payments, the foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by the Company and reasonably acceptable to Executive. The Company will direct the Accounting Firm to submit any such determinations and detailed supporting calculations to both Executive and the Company within fifteen (15) days after the date on which a payment becomes due. (b) If the Accounting Firm determines that a reduction in payments is required pursuant to this Section 14, cash benefits shall first be reduced, followed by a reduction of non-cash payments, including option or stock award vesting acceleration, in each case, beginning with payments that would be made last in time and only to the least extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay or provide such reduced amounts to Executive in accordance with the terms of this Agreement or any interest other applicable plan, arrangement or penalties payable agreement governing such payments. (c) If applicable, Executive and the Company will each provide the Accounting Firm access to and copies of any books, records and documents in their respective possession, reasonably requested by the Accounting Firm, and otherwise cooperate with respect to such excise tax the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 14. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 14 will be borne by the Company. (such excise taxd) For purposes of this Section 14, together with any such interest and penalties, are hereinafter collectively referred to as “Net After-Tax Benefit” means (i) the “Excise Tax”), then Employee shall be Total Payments that Executive become entitled to receive from the Company an additional payment or any Affiliate of the Company which would constitute “parachute payments” within the meaning of Code Section 280G, less (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (Bii) the incomeamount of all federal, excise, state and local income and employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged payable by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses Executive with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make Total Payments, calculated at the determinations hereunder shall provide its calculationsmaximum applicable marginal income tax rate, together with detailed supporting documentation, to less (iii) the Company and to Employee within fifteen (15) calendar days after the date amount of excise taxes imposed on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable Executive with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations Total Payments under Section 4999 of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeCode.

Parachute Payments. In If any payment or benefit Executive would receive in connection with a Change of Control from the event that the severance and other benefits provided for in this Agreement to Employee Company or otherwise (the “BenefitPayment”), determined without regard to any additional payment required under this section 4, ) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), ) and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee such Payment shall be entitled either delivered in full, or delivered as to receive from such lesser extent which would result in no portion of such Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax, results in the Executive’s receipt, on an after-tax basis, of the greater amount of the Payment, notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting a “parachute payment” is necessary, reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event the acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in reverse order of the date of grant of Executive’s stock awards. Unless Company an additional payment and the grantee otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Gross-Up PaymentAccountants”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax), whose determination shall be conclusive and (B) the income, excise, employment binding upon Executive and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit all purposes. For purposes as of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable good faith interpretations concerning the application of Section 280G and 4999 of the day prior Code. The Company and Executive shall furnish to the effective date of Accountants such information and documents as the Change of Control shall perform the foregoing calculationsAccountants may reasonably request in order to make a determination under this Section. The Company shall bear all expenses costs the Accountants may reasonably incur in connection with respect to the determinations any calculations contemplated by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeethis Section.

Parachute Payments. In If any payment or benefit you would receive from the event that the severance and other benefits provided for in this Agreement Company pursuant to Employee a Corporate Transaction or otherwise (the “BenefitPayment”), determined without regard to any additional payment required under this section 4, ) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee such Payment shall be entitled equal to receive from the Company an additional payment Reduced Amount. The “Reduced Amount” shall be either (x) the “Gross-Up Payment”) largest portion of the Payment that would result in an amount sufficient no portion of the Payment being subject to reimburse Employee for both (A) such the Excise Tax, and or (By) the incomelargest portion, exciseup to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and any other taxes imposed on the Gross Up Excise Tax (all computed at the highest applicable marginal rate), results in your receipt of the greatest economic benefit notwithstanding that all or some portion of the Payment provided under this Section 4may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in a manner necessary to provide you with the greatest economic benefit. If more than one manner of reduction of payments or benefits necessary to arrive at the Reduced Amount yields the greatest economic benefit, the payments and benefits shall be reduced pro rata. The independent registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change event described in Section 280G(b)(2)(A)(i) of Control the Code shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any any good faith determinations of the independent registered public accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeeyou.

Parachute Payments. In Notwithstanding any other provision in this Agreement or any other agreement or arrangement between the Company and you with respect to compensation or benefits (each an “Other Arrangement”), in the event that the severance and other benefits provided for in this Agreement to Employee (the “Benefit”), determined without regard to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning provisions of Section Sections 280G and 4999 of the Internal Revenue Code of 1986, as amended amended, or any successor provisions (the “Code”), and would cause you to receive a greater after-tax benefit from the Capped Benefit (iias defined below) than from the amounts (including the monetary value of any non-cash benefits) otherwise payable pursuant to this Agreement or any Other Arrangement (the “Specified Benefits”), the Capped Benefit shall be subject paid to you in lieu of the Specified Benefits. The “Capped Benefit” shall equal the Specified Benefits, reduced by the amount necessary to prevent any portion of the Specified Benefits from being a “parachute payment” as defined in Section 280G(b)(2) of the Code. The Capped Benefit would therefore equal 2.99 multiplied by your applicable “base amount” as defined in Section 280G(b)(3) of the Code. For purposes of determining whether you would receive a greater after-tax benefit from the Capped Benefit than from the Specified Benefits, there shall be taken into account any excise tax that would be imposed by under Section 4999 of the Code or any interest or penalties payable with and all federal, state and local taxes required to be paid by you in respect to of the receipt of such excise tax payments. The parties acknowledge that the application of Section 280G is uncertain in many respects and agree that the Company shall make all calculations and determinations under this section (such excise taxincluding application and interpretation of the Code and related regulatory, together with any such interest administrative and penaltiesjudicial authorities) in good faith, are hereinafter collectively referred to as the “Excise Tax”), then Employee which calculations and determinations shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculationsconclusive absent manifest error. The Company shall bear all expenses provide you with respect a reasonable opportunity to review and comment on the determinations by such accounting firm required Company’s calculations of the Capped Benefit and to request which of the Specified Benefits shall be made hereunderreduced. The accounting firm engaged If, after payment of any amount under this Agreement or any Other Arrangement, it is determined that the calculation of the Capped Benefit was calculated incorrectly, the amount of the Capped Benefit will be adjusted, the Company shall pay to make the determinations hereunder you any additional amount that should have been paid to you, and you shall provide its calculations, together with detailed supporting documentation, repay to the Company and any amount that should not have been paid to Employee within fifteen (15you, in each case with interest at the discount rate applicable under Section 280G(d)(4) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeCode.

Parachute Payments. In the event that the acceleration and severance and other benefits provided for in this Agreement to Employee (the “Benefit”), determined without regard to any additional payment required under this section 4, would (iA) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), ) and (iiB) but for this paragraph, would be subject to the excise tax imposed by Section 4999 of the Code Code, then your benefits hereunder shall be payable either: (X) in full, or any interest or penalties payable with respect (Y) as to such lesser amount which would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by you on an after-tax basis, of the greatest amount of benefits hereunder, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. Unless the Company and you otherwise agree in writing, any determination required under this paragraph shall be made in writing by the public accountants designated by the Company (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise TaxAccountants”), then Employee whose determination shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, conclusive and (B) the income, excise, employment binding upon you and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit all purposes. For purposes as of making the calculations required by this paragraph, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the day prior Code. The Company and you shall furnish to the effective date of Accountants such information and documents as the Change of Control shall perform the foregoing calculationsAccountants may reasonably request in order to make a determination under this paragraph. The Company shall bear all expenses costs the Accountants may reasonably incur in connection with respect any calculations contemplated by this paragraph. In the event that a reduction in payments and/or benefits is required under this paragraph, such reduction shall occur in the following order: (1) reduction of cash payments; (2) reduction of acceleration of vesting of options and shares; and (3) reduction of other benefits paid to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employeeyou. If the accounting firm determines that no Excise Tax acceleration of vesting of options and shares is payable with respect to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the highest price option grant or highest purchase price per share down to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeelowest priced option grant or lowest purchase price per share.

Parachute Payments. In 12.1 If any payment or benefit Executive would receive from the event that the severance and other benefits provided for in Company pursuant to this Agreement to Employee or otherwise (the “BenefitPayment”), determined without regard to any additional payment required under this section 4, ) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee such Payment will be equal to the Reduced Amount. The “Reduced Amount” shall be entitled either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and or (By) the incomelargest portion, exciseup to and including the total, of the Payment, whichever amount ((x) or (y)), after taking into account all applicable federal, state and local employment taxes, income taxes, and any other taxes imposed on the Gross Up Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt of the greatest economic benefit notwithstanding that all or some portion of the Payment provided under this Section 4. may be subject to the Excise Tax. 12.2 The independent registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change event described in Section 280G(b)(2)(A)(i) of Control the Code shall perform the foregoing calculations. The If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting such event, Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee Executive within fifteen thirty (1530) calendar days after the date on which EmployeeExecutive’s right to the Benefit a Payment is triggered (if requested at that time by the Company or by EmployeeExecutive) or such other time as reasonably requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such BenefitExecutive. Any good faith determinations of the independent registered public accounting firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeExecutive. 12.3 Notwithstanding the above, prior to any reduction in payments and benefits under this Section 6, at Executive’s request the Company agrees, if permissible under Section 280G of the Code and applicable law (and subject to any applicable requirements including any requirements that may be applicable to Executive), to solicit a vote of all eligible shareholders of the Company for approval of such amounts such that the compensation will not be subject to the Excise Tax as provided in Q&As 6 and 7 of Section 1.280G-1 of the Treasury Regulations or any superseding provision of such regulations. The Company agrees to take all reasonable steps, in good faith, to solicit such vote if so request.

Parachute Payments. In (a) Before the event that Closing Date, the severance Company will (to the extent the requisite Waivers described below are obtained) seek the approval by such number of shareholders of the Company as is required by the terms of Section 280G(b)(5)(B) of the Code so as to render the parachute payment provisions of Section 280G inapplicable to any and other all vesting, payments and/or benefits provided for pursuant to any Company Benefit Plan or any other agreement, contract or arrangement that might otherwise result from the consummation of the transactions contemplated by this Agreement, separately or in this Agreement the aggregate, in the payment of any amount and/or the provision of any benefit that would not be deductible by reason of Section 280G, with such shareholder vote to Employee be prepared, disseminated and otherwise conducted in a manner that satisfies all applicable requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder (the “Benefit280G Shareholder Vote”). Buyer shall provide the Company with all information concerning material Buyer arrangements necessary to be included in any disclosure document related to the 280G Shareholder Vote. If a favorable 280G Shareholder Vote is obtained, determined without regard Buyer shall not thereafter (but on or prior to the Closing Date) agree to any additional compensatory arrangement that could result in such 280G Shareholder Vote no longer being effective. (b) The Company shall take commercially reasonable efforts to obtain and deliver to Buyer, prior to the initiation of the 280G Shareholder Vote, a parachute payment required under this section 4, would waiver agreement (ia “Waiver”) constitute from each Person the Company reasonably believes to be a “parachute paymentsdisqualified individual” (within the meaning of Section 280G(c) of the Code and the Treasury Regulations promulgated thereunder), as determined immediately prior to the 280G Shareholder Vote, and who might otherwise have, receive or have the right or entitlement to receive any payments or benefits from the consummation of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) transactions contemplated by this Agreement that would be subject to treatment as parachute payments within the meaning of Section 280G. Pursuant to a Waiver Agreement, each such Person shall agree to waive any and all right or entitlement to receive vesting, payments or benefits to the extent the value thereof would result in the imposition of an excise tax imposed by on such Person pursuant to Section 4999 of the Code Code, assuming such Person is subject to U.S. tax jurisdiction, unless the requisite shareholder approval of such payments or any interest or penalties payable with respect benefits is obtained pursuant to such excise tax the 280G Shareholder Vote. (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”c) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged All materials produced by the Company in connection with the 280G Shareholder Vote shall be provided to Buyer reasonably in advance for general audit purposes as of Buyer’s review and comment, which the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any consider in good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeenot unreasonably omit.

Parachute Payments. In If any payment or benefit Executive would receive in connection with a Change of Control from the event that the severance and other benefits provided for in this Agreement to Employee Company or otherwise (the “BenefitPayment”), determined without regard to any additional payment required under this section 4, ) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), ) and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee such Payment shall be entitled either delivered in full, or delivered as to receive from such lesser extent which would result in no portion of such Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax, results in the Executive’s receipt, on an after-tax basis, of the greater amount of the Payment, notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting a “parachute payment” is necessary, reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event the acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in reverse order of the date of grant of Executive’s stock awards. Unless Company an additional payment and the Grantee otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Gross-Up PaymentAccountants”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax), whose determination shall be conclusive and (B) the income, excise, employment binding upon Executive and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit all purposes. For purposes as of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable good faith interpretations concerning the application of Section 280G and 4999 of the day prior Code. The Company and Executive shall furnish to the effective date of Accountants such information and documents as the Change of Control shall perform the foregoing calculationsAccountants may reasonably request in order to make a determination under this Section. The Company shall bear all expenses costs the Accountants may reasonably incur in connection with respect to the determinations any calculations contemplated by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeethis Section.

Parachute Payments. In the event that the severance and other benefits provided for in this Agreement to Employee (the “Benefit”), determined without regard to any additional payment required under this section 4, would (i) any severance payment, insurance benefits, accelerated vesting, pro-rated bonus or other benefit payable to Consultant shall constitute a “parachute paymentspayment” within the meaning of Code Section 280G of the Internal Revenue Code of 1986, as amended (the “CodeParachute Payment”), ) and (ii) be subject to the excise tax imposed by Code Section 4999 of the Code or any interest or penalties payable 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”), and (ii) if the payments to Consultant were reduced to the minimum extent necessary so that such payments did not constitute Parachute Payments, the net benefits retained by Consultant after the deduction of any federal, state or local income taxes would be greater than the net benefits retained by Consultant if there was no such reduction after the deduction of Excise Tax and any federal, state or local income taxes, then Employee such payments shall be entitled so reduced. Such reduction shall be accomplished in any manner deemed appropriate by Flora Growth after consultation with Consultant. For purposes of making the foregoing determination: (1) Parachute Payments provided under arrangements with Consultant other than this Agreement, if any, shall be taken into account in determining the total amount of Parachute Payments received by Consultant so that the amount of Parachute Payments that are attributable to receive from provisions of this Agreement is maximized; and (2) Consultant shall be deemed to pay federal, state and local income taxes at the Company an additional payment highest marginal rate of taxation for Consultant’s taxable year in which the Parachute Payments are includable in Consultant’s income for purposes of federal, state and local income taxation. The determination of whether the Excise Tax is payable, and the amount of any reduction necessary to make the Excise Tax not payable, as well as whether such a reduction would result in greater after-tax benefits to Consultant, shall be made in writing in good faith by a nationally-recognized independent certified public accounting firm approved by Flora Growth and Consultant, such approval not to be unreasonably withheld (the “Gross-Up PaymentAccounting Firm”) ). For purposes of making the calculations required by this Section 11(a), to the extent not otherwise specified herein, reasonable assumptions and approximations may be made with respect to applicable taxes and reasonable, good faith interpretations of the Code may be relied upon. Flora Growth and Consultant shall furnish such information and documents as may be reasonably requested in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (B) connection with the income, excise, employment and any other taxes imposed on performance of the Gross Up Payment provided calculations under this Section 411(a). The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company Flora Growth shall bear all expenses costs incurred in connection with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations performance of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeecalculations contemplated by this Section 11(a).

Parachute Payments. In the event that the severance and other benefits provided for Anything in this Agreement to Employee the contrary notwithstanding, if any payment or benefit you would receive from the Company pursuant to this Agreement or otherwise (the “BenefitPayment”), determined without regard to any additional payment required under this section 4, ) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee such Payment shall be entitled equal to receive from the Company an additional Reduced Amount. The “Reduced Amount” shall be either (1) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (2) the Payment or a portion thereof after payment (of the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such applicable Excise Tax, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (B) all computed at the incomehighest applicable marginal rate), exciseresults in your receipt, employment and any other taxes imposed on an after-tax basis, of the Gross Up greatest amount of the Payment. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment provided under this Section 4equals the Reduced Amount, reduction shall occur in the order of payments you elect in writing, provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the Payment occurs. The Company’s principal outside accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear will make all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder and shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee you within fifteen (15) calendar days after the date on which Employee’s your right to the Benefit a Payment is triggered (if requested at that time by you or the Company or by EmployeeCompany) or such other time as requested by you or the Company or by EmployeeCompany. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the Benefitapplication of the Reduced Amount, it shall furnish the Company and Employee you with an opinion reasonably acceptable to Employee you that no Excise Tax will be imposed with respect to such BenefitPayment. Any good faith determinations of The Company shall be entitled to rely upon the accounting firm made hereunder firm’s determinations, which shall be final, final and binding and conclusive upon the Company and Employeeon all persons.

Parachute Payments. In (a) The Executive shall bear all expense of, and be solely responsible for, any excise tax imposed by Section 4999 of the event that the severance and other benefits provided for in this Agreement to Employee Code (the “BenefitExcise Tax”); provided, determined without regard however, that any payment or benefit received or to be received by the Executive (whether payable under the terms of this Agreement or any additional payment required under this section 4other plan, arrangement or agreement with the Company or an Affiliate (collectively, the “Payments”) that would constitute a “parachute payment” within the meaning of Section 280G of the Code, shall be reduced to the extent necessary so that no portion thereof shall be subject to the Excise Tax but only if, by reason of such reduction, the net after-tax benefit received by the Executive shall exceed the net after-tax benefit that would be received by the Executive if no such reduction was made. (b) The “net after-tax benefit” shall mean (i) the Payments which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code, less (ii) the amount of all federal, state and local income and employment taxes payable by Executive with respect to the foregoing calculated at the highest marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of 1986the first payment of the foregoing), as amended less (iii) the amount of Excise Tax imposed with respect to the payments and benefits described in (b)(i) above. (c) All determinations under this Section 20 will be made by an accounting firm or law firm (the “280G Firm”) that is mutually agreed to by the Executive and the Company prior to a change in ownership or control of a corporation (within the meaning of Treasury regulations under Section 280G of the Code”). The 280G Firm shall be required to evaluate the extent to which payments are exempt from Section 280G as reasonable compensation for services rendered before or after the Change in Control Event. All fees and expenses of the 280G Firm shall be paid solely by the Company. The Company will direct the 280G Firm to submit any determination it makes under this Section 20 and detailed supporting calculations to both the Executive and the Company as soon as reasonably practicable. (d) If the 280G Firm determines that one or more reductions are required under this Section 20, the 280G Firm shall also determine which Payments shall be reduced (first from cash payments and (iithen from non-cash benefits, in each such case first from amounts not subject to Section 409A of the Code and then from amounts subject to Section 409A of the Code, with the Payments that otherwise would be made last in time reduced first) to the extent necessary so that no portion thereof shall be subject to the excise Excise Tax, and the Company shall pay such reduced amount to the Executive. (e) As a result of the uncertainty in the application of Section 280G at the time that the 280G Firm makes its determinations under this Section 20, it is possible that amounts will have been paid or distributed to the Executive that should not have been paid or distributed (collectively, the “Overpayments”), or that additional amounts should be paid or distributed to the Executive (collectively, the “Underpayments”). If the 280G Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive, which assertion the 280G Firm believes has a high probability of success or is otherwise based on controlling precedent or substantial authority, that an Overpayment has been made, the Executive must repay the Overpayment to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Executive to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Executive is subject to tax imposed by under Section 4999 of the Code or any interest generate a refund of tax imposed under Section 4999 of the Code. If the 280G Firm determines, based upon controlling precedent or penalties payable with respect to such excise tax (such excise taxsubstantial authority, together with any such interest that an Underpayment has occurred, the 280G Firm will notify the Executive and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Taxof that determination, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as will promptly pay the amount of the day prior that Underpayment to the effective date Executive without interest. (f) The parties will provide the 280G Firm access to and copies of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculationsany books, together with detailed supporting documentationrecords, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time documents in their possession as reasonably requested by the Company or 280G Firm, and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the determinations and calculations contemplated by Employeethis Section 20. If For purposes of making the accounting firm determines that no Excise Tax is payable with respect to calculations required by this Section 20, the Benefit280G Firm may rely on reasonable, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations interpretations concerning the application of Sections 280G and 4999 of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeCode.

Parachute Payments. In Notwithstanding anything to the contrary herein or in any Benefit Plan, in the event it shall be determined that any monetary amounts or benefits due or payable by the severance and other benefits provided for in this Agreement Company to Employee Executive (the “Benefit”)whether paid or payable, determined without regard or due or distributed) are or will become subject to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by under Section 4999 of the Code or any interest or penalties payable with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise TaxTaxes”), then Employee the amounts or benefits otherwise due or payable to Executive pursuant to this Agreement or any Benefit Plans shall be entitled reduced to receive from the Company an additional payment extent necessary so that no portion of such amounts or benefits shall be subject to the Excise Taxes, but only if (i) the “Gross-Up Payment”net amount of such amounts and benefits, as so reduced (and after the imposition of the total amount of taxes under federal, state and local law on such amounts and benefits), is greater than (ii) in an amount sufficient to reimburse Employee for both the excess of (A) the net amount of such Excise Taxamounts and benefits, without reduction (but after imposition of the total amount of taxes under federal, state and local law) over (B) the income, excise, employment amount of Excise Taxes to which Executive would be subject on such unreduced amounts and any other taxes benefits. If it is determined that Excise Taxes will or might be imposed on Executive in the Gross Up Payment provided under absence of such reduction, the Company and Executive shall make good faith efforts to seek to identify and pursue reasonable action to avoid or reduce the amount of Excise Taxes; provided, however, that this sentence shall not be construed to require Executive to accept any further reduction in the amount or benefits that would be payable to him in the absence of this sentence. The provisions of this Section 47(d) shall override and control any inconsistent provision in any applicable Benefit Plan. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the All determinations by such accounting firm required to be made hereunder. The under this Section 7(d), including whether reduction is required, the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made in good faith by an independent accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time selected by the Company or by Employee) or such other time as requested in accordance with applicable law (the “Accounting Firm”), in consultation with tax counsel reasonably acceptable to Executive. All fees and expenses of the Accounting Firm shall be borne solely by the Company or by EmployeeCompany. If the accounting firm Accounting Firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employee.excise tax

Parachute Payments. In the event that the severance and other benefits provided for Executive is not party to a change in control or comparable agreement with the Company, the following provisions of this Section 5 shall be applicable. (a) Anything in this Agreement to Employee the contrary notwithstanding, if any benefit the Executive would receive from the Company pursuant to this Agreement or otherwise (the a “BenefitPayment”), determined without regard to any additional payment required under this section 4, ) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee such Payment shall be entitled equal to receive from the Company Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion of the Payment, up to and including the total Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the Executive’s receipt, on an additional payment (after-tax basis, of the greater amount of the Payment, notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, the amounts payable or benefits to be provided to the Executive shall be reduced such that the economic loss to the Executive as a result of the “Gross-Up Payment”parachute payment” elimination is minimized. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. (b) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The Company shall appoint a nationally recognized independent accounting firm engaged by to make the Company determinations required hereunder, which accounting firm shall not then be serving as accountant or auditor for general audit purposes as the individual, entity or group that effected the Sale of the day prior to the effective date of the Change of Control shall perform the foregoing calculationsCompany. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. . (c) The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee the Executive within fifteen (15) calendar days after the date on which Employeethe Executive’s right to the Benefit a Payment is triggered (if requested at that time by the Company or by Employeethe Executive) or such other time as requested by the Company or by Employeethe Executive. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the Benefitapplication of the Reduced Amount, it shall furnish the Company and Employee the Executive with an opinion reasonably acceptable to Employee the Executive that no Excise Tax will be imposed with respect to such BenefitPayment. Any good faith determinations of The Company shall be entitled to rely upon the accounting firm made hereunder firm’s determinations, which shall be final, final and binding and conclusive upon the Company and Employeeon all persons.

Parachute Payments. In 12.1 If any payment or benefit Executive would receive from the event that the severance and other benefits provided for in Company pursuant to this Agreement to Employee or otherwise (the “BenefitPayment”), determined without regard to any additional payment required under this section 4, ) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee such Payment will be equal to the Reduced Amount. The “Reduced Amount” shall be entitled either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and or (By) the incomelargest portion, exciseup to and including the total, of the Payment, whichever amount ((x) or (y)), after taking into account all applicable federal, state and local employment taxes, income taxes, and any other taxes imposed on the Gross Up Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt of the greatest economic benefit notwithstanding that all or some portion of the Payment provided under this Section 4. may be subject to the Excise Tax. 12.2 The independent registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change event described in Section 280G(b)(2)(A)(i) of Control the Code shall perform the foregoing calculations. The If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting such event, Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee Executive within fifteen thirty (1530) calendar days after the date on which EmployeeExecutive’s right to the Benefit a Payment is triggered (if requested at that time by the Company or by EmployeeExecutive) or such other time as reasonably requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such BenefitExecutive. Any good faith determinations of the independent registered public accounting firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeExecutive. 12.3 Notwithstanding the above, prior to any reduction in payments and benefits under this Section 6, at Executive’s request the Company agrees, if permissible under Section 280G of the Code and applicable law (and subject to any applicable requirements including any requirements that may be applicable to Executive), to solicit a vote of all eligible shareholders of the Company for approval of such amounts such that the compensation will not be subject to the Excise Tax as provided in Q&As 6 and 7 of Section 1.280G--1 of the Treasury Regulations or any superseding provision of such regulations. The Company agrees to take all reasonable steps, in good faith, to solicit such vote if so request.

Parachute Payments. In the event that the severance and other benefits provided for in any payments to you pursuant to this Agreement or any payment received by you or paid by the Company on your behalf is treated as contingent on a change of ownership or control of the Company or in the ownership of a substantial portion of the assets of the Company or any Person affiliated with the Company (but only if such payment or other benefit is in connection with your employment relationship with the Company) (collectively, the "Total Value") shall result in you becoming liable for the payment of any excise taxes pursuant to Employee (the “Benefit”), determined without regard to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”") ("Excise Tax"), and (ii) you shall be subject entitled to an additional payment equal to the excise tax imposed amount of any Excise Taxes payable by Section you pursuant to section 4999 of the Code or as a result of such payments plus all federal, state and local taxes applicable to the Company's payment of such Excise Taxes, including any interest or penalties payable additional taxes due under section 4999 of the Code with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred payments made pursuant to as the “Excise Tax”), then Employee shall be entitled this provision. The intent of this Section 20 is to receive from provide that the Company shall pay you an additional payment amount (the “"Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A") such that the net amount retained by you after deduction: (a) of any Excise Tax imposed on the Total Value; and (b) of any excess tax, federal, state or local income, payroll, and/or other taxes, imposed on the Gross-Up Payment, shall equal the Total Value. If you determine that you are liable for an Excise Tax with respect to a payment or other benefit, you must promptly so notify the Company in writing. Upon receipt of such notice from you, the Company must, within twenty (20) days thereafter, either (i) notify you, in writing, that the Company agrees with your determination of Excise Tax liability, in which case the Company shall become obligated to immediately pay to you the Gross-Up Payment, or (ii) submit to you an opinion, prepared by counsel of the Company's choice which counsel is reasonably satisfactory to you, that you are not liable for the Excise Tax (the "Tax Opinion"). If the Tax Opinion is provided to you and you nevertheless choose not to contest the assertion of the Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as shall be relieved of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged its obligation to make the determinations hereunder shall provide its calculationsGross-Up Payment specified hereunder. If you choose to contest the assertion of the Excise Tax after receipt of the Tax Opinion, together you may do so with detailed supporting documentation, counsel of your choice that is reasonably satisfactory to the Company and to Employee within fifteen (15) calendar days after the date reasonable legal fees and expenses of such contest shall be paid by the Company, on which Employee’s right a monthly basis, subject to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by EmployeeCompany's receipt of proper documentation therefore. If the accounting firm determines that no Excise Tax is payable with respect to the Benefitso contested, it shall furnish then the Company and Employee with an opinion reasonably acceptable shall pay to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of you the accounting firm made hereunder shall be final, binding and conclusive Gross-Up Payment upon the Company and Employee.earlier of ten (10) days after (A) the entry of a final judgment, decree, or other order by a court of competent jurisdiction that you are liable for the Excise Tax, or (B) a mutual

Parachute Payments. In (a) If any Severance Benefits, payment, distribution or benefit you would receive pursuant to a Corporate Transaction from the event that the severance and other benefits provided for in this Agreement to Employee (the “Benefit”)Company or otherwise, but determined without regard to any additional payment required under this section 44(a), would (“Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee you shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such that shall fund the payment by you of any Excise Tax, Tax on the Payment as well as all income and (B) the income, excise, employment and any other taxes imposed on the Gross Gross-Up Payment, any Excise Tax imposed on the Gross-Up Payment provided under this Section 4. and any interest or penalties imposed with respect to income and employment taxes imposed on the Gross-Up Payment. (b) The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control Corporate Transaction shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Corporate Transaction, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. . (c) The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee you within fifteen (15) calendar days after the date on which Employee’s your right to the Benefit a Payment is triggered (if requested at that time by the Company or by Employeeyou) or such other time as requested by the Company or by Employeeyou. If the accounting firm determines that no Excise Tax is payable with respect to the Benefita Payment, it shall furnish the Company and Employee you with an opinion reasonably acceptable to Employee you that no Excise Tax will be imposed with respect to such BenefitPayment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeeyou.

Parachute Payments. In the event that the severance acceleration of the vesting and other benefits exercisability of your Option and/or the lapse of reacquisition or repurchase rights with respect to Common Stock acquired pursuant to the early exercise of an Option provided for in this Agreement subsection 1(a) and benefits otherwise payable to Employee (the “Benefit”), determined without regard to any additional payment required under this section 4, would you (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”)or any comparable successor provisions, and (ii) but for this subsection would be subject to the excise tax imposed by Section 4999 of the Code Code, or any interest or penalties payable with respect to such excise tax comparable successor provisions (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee your benefits hereunder shall be entitled either (i) provided to receive from you in full, or (ii) provided to you as to such lesser extent which would result in no portion of such benefits being subject to the Company an additional payment (Excise Tax, whichever of the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and (B) the income, excise, employment and any other taxes imposed applicable taxes, results in the receipt by you, on an after-tax basis, of the Gross Up Payment provided greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax. Unless the Company and you otherwise agree in writing, any determination required under this Section 4. The subsection shall be made in writing in good faith by the accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in Control. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a different nationally recognized accounting firm to make the determinations required hereunder (the accounting firm so engaged pursuant to the two immediately preceding sentences, the “Accountants”). In the event of Control a reduction of benefits hereunder, you shall perform be given the foregoing calculationschoice of which benefits to reduce. For purposes of making the calculations required by this subsection, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and you shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this subsection. The Company shall bear all expenses costs the Accountants may reasonably incur in connection with any calculations contemplated by this subsection. If, notwithstanding any reduction described in this subsection, the IRS determines that you are liable for the Excise Tax as a result of the receipt of the payment of benefits as described above, then you shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that you challenge the final IRS determination, a final judicial determination, a portion of the payment equal to the “Repayment Amount.” The Repayment Amount with respect to the determinations by payment of benefits shall be the smallest such accounting firm amount, if any, as shall be required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, paid to the Company and so that your net after-tax proceeds with respect to Employee within fifteen any payment of benefits (15) calendar days after taking into account the date on which Employee’s right to payment of the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable and all other applicable taxes imposed on such payment) shall be maximized. The Repayment Amount with respect to the Benefit, it payment of benefits shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed zero if a Repayment Amount of more than zero would not result in your net after-tax proceeds with respect to the payment of such Benefitbenefits being maximized. Any good faith determinations If the Excise Tax is not eliminated pursuant to this paragraph, you shall pay the Excise Tax. Notwithstanding any other provision of this subsection 1(b), if (i) there is a reduction in the payment of benefits as described in this subsection, (ii) the IRS later determines that you are liable for the Excise Tax, the payment of which would result in the maximization of your net after-tax proceeds (calculated as if your benefits had not previously been reduced), and (iii) you pay the Excise Tax, then the Company shall pay to you those benefits which were reduced pursuant to this subsection contemporaneously or as soon as administratively possible after you pay the Excise Tax so that your net after-tax proceeds with respect to the payment of benefits is maximized. If you either (i) bring any action to enforce rights pursuant to this subsection 1(b), or (ii) defend any legal challenge to your rights hereunder, you shall be entitled to recover attorneys’ fees and costs incurred in connection with such action, regardless of the accounting firm made hereunder shall be finaloutcome of such action; provided, binding and conclusive upon however, that in the Company and Employeeevent such action is commenced by you, the court finds the claim was brought in good faith.

Parachute Payments. In (i) It is the event that the severance and other benefits provided for in objective of this Agreement to Employee (the “Benefit”), determined without regard to any additional payment required maximize Executive’s net after-tax benefit if payments or benefits provided under this section 4, would (i) constitute “parachute payments” within the meaning of Agreement are subject to excise tax under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”). Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit by the Company or otherwise to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (all such payments and (ii) benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee the cash severance payments shall first be reduced, and the non-cash severance payments shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments shall be entitled subject to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, but only if the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to the net amount of such Total Payments without such reduction (Bbut after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). (ii) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged Total Payments shall be reduced by the Company for general audit purposes as in the following order: (i) reduction of any cash severance payments otherwise payable to Executive that are exempt from Section 409A of the day prior Code, (ii) reduction of any other cash payments or benefits otherwise payable to Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to the effective date acceleration of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses vesting or payments with respect to any equity award with respect to the determinations by such accounting firm required Parent’s common stock that is exempt from Section 409A of the Code, (iii) reduction of any other payments or benefits otherwise payable to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date Executive on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) a pro-rata basis or such other time as requested by manner that complies with Section 409A of the Company or by Employee. If Code, but excluding any payments attributable to the accounting firm determines that no Excise Tax is payable acceleration of vesting and payments with respect to any equity award with respect to the BenefitParent’s common stock that are exempt from Section 409A of the Code, it shall furnish and (iv) reduction of any payments attributable to the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed acceleration of vesting or payments with respect to such Benefit. Any good faith determinations any other equity award with respect to the Parent’s common stock that are exempt from Section 409A of the Code. (iii) All determinations regarding the application of this Section 4(h) shall be made by an accounting firm made hereunder with experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax selected by the Company (“Independent Advisors”). For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be finaltaken into account, binding (ii) no portion of the Total Payments shall be taken into account which, in the opinion of the Independent Advisors, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, and conclusive upon (iii) the Company value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and Employee(4) of the Code. The costs of obtaining such determination and all related fees and expenses (including related fees and expenses incurred in any later audit) shall be borne by the Company. (iv) In the event it is later determined that a greater reduction in the Total Payments should have been made to implement the objective and intent of this Section 4(h), the excess amount shall be returned immediately by the Executive to the Company, plus interest at a rate equal to 120% of the semi-annual applicable federal rate as in effect at the time of the transaction giving rise to the imposition of the Excise Tax.

Parachute Payments. (a) In the event it shall be determined that any payment or distribution to or for the severance and other benefits provided for in benefit of the Executive under this Agreement to Employee or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control or other change in control or any person affiliated with the Company or such person (the “Benefit”)Payment” and collectively, determined without regard to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “CodePayments”), and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed) or any interest or penalties payable with respect to such excise tax (collectively, such excise tax, together with any such interest and or penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee shall be entitled to receive from the Company shall pay to the Executive at the time specified in Section 8(b) hereof an additional payment amount (the “Gross-Up Payment”) in an such that the net amount sufficient to reimburse Employee for both (A) such retained by Executive, after deduction of any Excise Tax, and (B) Tax on the income, excise, employment Payments and any other taxes imposed on federal, state and local income tax and Excise Tax upon the Gross Up Payment payment provided for by this Section 8, shall be equal to the Payments. Notwithstanding anything to the contrary in this Section 8, in no event shall the Company be required to pay to the Executive any amount under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses 8 with respect to the any taxes or interest that may arise as a result of Section 409A. (b) All determinations by such accounting firm required to be made hereunder. The under this Section 8 shall be made in writing by a nationally recognized public accounting firm engaged selected by the Company and subject to make the approval of the Executive, which approval shall not be unreasonably withheld, and such determinations hereunder shall provide its calculations, together with be final and binding on the Company and the Executive and detailed supporting documentation, calculations shall be provided to the Company and the Executive. Any fees incurred as a result of work performed by any independent accounting firm pursuant to Employee this Section 8 shall be paid by the Company. The Gross-Up Payment provided for in this Section 8 shall be made not later than the date the applicable Excise Tax with respect to which the portion of the Gross-Up Payment relates is due. In no event shall any payment made to the Executive pursuant to this Section 8 be made later than the last day of the calendar year following the calendar year in which the applicable Excise Tax is paid by the Executive. (c) For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation 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 of the applicable Payment with respect to which the portion of the Gross-Up Payment relates, 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 for purposes of determining the Gross-Up Payment, the Executive shall repay to the Company within fifteen (15) calendar ten days after the date on which Employee’s right to time that the Benefit is triggered (if requested at that time by the Company or by Employee) or amount of such other time as requested by the Company or by Employee. If the accounting firm determines that no reduction in Excise Tax is payable 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 Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax and/or federal and state and local income tax deduction). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the applicable Payment with respect to which the Benefitportion of the Gross-Up Payment relates (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), it shall furnish the Company and Employee with shall make an opinion reasonably acceptable to Employee additional gross-up payment in respect of such excess within ten days after the time that no Excise Tax will be imposed with respect to the amount of such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeeexcess is finally determined.

Parachute Payments. (a) In the event that the severance and other benefits Executive become entitled to any amount or benefit payable or provided for in under this Agreement or any other agreement, policy, plan, program or arrangement with a member of the Bowhead Group, or the lapse or termination of any restriction under any agreement, policy, plan, program or arrangement with a member of the Bowhead Group, in connection with a Change in Control that occurs within three years of the Company’s initial public offering (collectively, the “Payments”), and any of such Payments become subject to Employee the tax imposed by Section 4999 of the Code (the “BenefitExcise Tax”), determined without regard to any additional payment required under this section 4, would (i) constitute by reason of being “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Section 4999 of the Code or any interest similar federal, state or penalties payable with respect to such excise tax (such excise local tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee shall be entitled to receive from the Company shall pay to Executive an additional payment amount (the a “Gross-Up Payment”) such that, after Executive’s payment of the federal, state and local income taxes (taking into account the loss of itemized deductions), employment tax (together with any interest or penalties with respect thereto) and Excise Tax on the Gross-Up Payment, the Executive retains a net amount equal to the Excise Tax imposed upon the Payments. A Gross-Up Payment shall be paid to the Executive or withheld and made on behalf of the Executive to the applicable taxing authorities as soon as reasonably practicable, but in no event later than twenty (20) business days, after the later of the date that it is determined that a Payment is subject to the Excise Tax and the date that the Excise Tax is required to be withheld and paid to the applicable taxing authorities. Notwithstanding anything herein to the contrary in this Section 17(a), in no event shall the amount of the Gross-Up Payment(s) payable to Executive exceed an aggregate of $3,000,000 (such amount, the “Gross-Up Cap”). (b) Any determination required under this Section shall be made in writing by an independent third party selected by Company after consultation with the Executive prior to the Change in Control (the “Firm”), whose determination shall be conclusive and binding upon the Parties for all purposes. For purposes of making the calculations required by this Section, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, including what constitutes “reasonable compensation” for purposes of Section 280G of the Code after taking into account the restrictive covenants that apply to the Executive under this Agreement. (c) The Parties reasonably cooperate with the Firm to reduce the amount sufficient to reimburse Employee for both (A) such of any Excise Tax, including but not limited to providing information and (B) documents as the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the day prior Firm may reasonably request in order to the effective date of the Change of Control shall perform the foregoing calculationsmake a determination hereunder. The Company shall bear all expenses costs the Firm may reasonably incur in connection with respect to the determinations by such accounting firm required to be made any calculations contemplated hereunder. The accounting firm engaged Firm shall be required to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen determination not later than thirty (1530) calendar days after the date on which Employee’s right to of the Benefit is triggered Change in Control. (if requested at that time by the Company or by Employeed) or such other time as requested by the Company or by Employee. If the accounting firm Firm determines that no Excise Tax is payable by the Executive, the Executive will be provided detailed information to support that he has a reasonable basis not to report any Excise Tax on his federal, state or local income or other tax return, which information shall address what portion, if any, of the Payment constitutes “reasonable compensation” for purposes of Section 280G of the Code. If the Firm determines that an Excise Tax will (or would, but for reduction in the Payments) be assessed with respect to the BenefitPayments, it the Executive will be provided with detailed information for such position, including the basis for determining what portion, if any, of the Payments constitutes “reasonable compensation” for purposes of Section 280G of the Code. (e) If the Excise Tax is subsequently determined, either by the Firm or a taxing authority, to be less than the amount determined hereunder, the Executive shall furnish repay to the Company, within ten business days after 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 Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or federal and state and local income tax deduction). (f) The Executive is required to notify the Company and Employee with an opinion reasonably acceptable promptly, but in no event later than ten (10) business days after receipt, of any written claim by any taxing authority that, if successful, would require the Executive to Employee that no pay additional Excise Tax will be imposed and/or any other taxes with respect to the Payments or the Gross-Up Payment that exceed the Gross-Up Payment previously made to Executive. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such Benefitclaim is due). Any If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall (i) give the Company any information reasonably requested by relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, coordinate with accepting legal representation with respect to such claim by an attorney expert in such area reasonably selected by the Company, it being understood that Executive may also retain separate counsel at the sole cost of the Executive; (iii) cooperate with the Company in good faith determinations in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay during the period of representation directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim, provided that if the sum of the accounting firm made hereunder taxes, interest and penalties that are being sought by the applicable taxing authorities in such contest would, if sustained, result in one or more Gross-Up Payments under paragraph (a) that, in the aggregate, exceed the Gross-Up Cap, Executive will control all proceedings taken in connection with such contest and determine whether to pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim, subject, in each case, to the Company’s reasonable input. In all events, the Company’s control of any contest shall be finallimited to issues the resolution of which would impact whether a Gross-Up Payment would be payable hereunder. Executive shall be entitled to settle or contest, binding as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority, and conclusive upon Executive shall control any extension of the statute of limitations with respect to matters other than those directly related to the Excise Tax. (g) If the Excise Tax is subsequently determined by the taxing authority to exceed the amount of the Gross-Up Payment, the Company shall make an additional Gross-Up Payment in respect of such excess within five business days after the date that the amount of such excess is finally determined; provided that in no event will the Company make Gross-Up Payments to the Executive that exceed, in the aggregate, the Gross-Up Cap. In the event that the subsequent determinations as to the Excise Tax affect earlier Gross-Up Payment calculations under this Section, such amounts will be recalculated and Employeethe provisions of this Section applied based on the revised calculations. (h) Notwithstanding the preceding paragraphs of this Section, references to the Company shall include its successors, and Gross-Up Payments shall in no event be made later than the end of the year following the year in which the Executive remits the related taxes to the applicable taxing authorities. In all events the additional Gross-Up Payments shall be made not later than the end of the year following the year in which the taxes that are the subject of an audit or litigation are remitted to the applicable taxing authority, or where as a result of such audit or litigation no taxes are remitted, the end of the year following the year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation, consistent with the requirements of Section 409A of the Code

Parachute Payments. In (a) It is the event that the severance and other benefits provided for in objective of this Agreement to Employee maximize Executive’s Net After-Tax Benefit (the “Benefit”), determined without regard to any additional payment required as defined herein) if payments or benefits provided under this section 4, would (i) constitute “parachute payments” within the meaning of Agreement are subject to excise tax under Section 280G 4999 of the Internal Revenue Code of 1986, as amended amended, and the regulations and guidance promulgated thereunder (the “Code”). Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit by the Company or otherwise to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (all such payments and (iibenefits, including the payments under Sections 4(b) and 4(c) hereof, being hereinafter referred to as the “Total Payments”), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee the Total Payments shall be entitled reduced to receive from the Company an additional payment (extent necessary so that no portion of the “Gross-Up Payment”) in an amount sufficient Total Payments shall be subject to reimburse Employee for both (A) such the Excise Tax, and but only if (Bi) the incomenet amount of such Total Payments, exciseas so reduced (and after subtracting the net amount of federal, state and local income and employment taxes on such reduced Total Payments and any other after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes imposed on such Total Payments and the Gross Up Payment provided under this Section 4. amount of Excise Tax to which Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). (b) The accounting firm engaged Total Payments shall be reduced by the Company for general audit purposes as in the following order: (i) reduction of the day prior any cash severance payments otherwise payable to Executive that are exempt from Section 409A, (ii) reduction of any other cash payments or benefits otherwise payable to Executive that are exempt from Section 409A, but excluding any payments attributable to the effective date acceleration of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses vesting or payments with respect to any equity award with respect to the determinations by such accounting firm required Company’s common stock that is exempt from Section 409A, (iii) reduction of any other payments or benefits otherwise payable to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date Executive on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) a pro-rata basis or such other time as requested by manner that complies with Section 409A, but excluding any payments attributable to the Company or by Employee. If the accounting firm determines that no Excise Tax is payable acceleration of vesting and payments with respect to any equity award with respect to the BenefitCompany’s common stock that are exempt from Section 409A, it and (iv) reduction of any payments attributable to the acceleration of vesting or payments with respect to any other equity award with respect to the Company’s common stock that are exempt from Section 409A. (c) All determinations regarding the application of this Section 5 shall furnish be made by an accounting firm with experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax selected by the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax Executive (“Independent Advisors”), a copy of which report and all worksheets and background materials relating thereto shall be provided to Executive. For purposes of determining whether and the extent to which the Total Payments will be imposed with respect subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the opinion of the Independent Advisors, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such Benefit. Any good faith determinations reasonable compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the accounting firm made hereunder Code. The costs of obtaining such determination and all related fees and expenses (including related fees and expenses incurred in any later audit) shall be final, binding and conclusive upon borne solely by the Company and EmployeeCompany.

Parachute Payments. In (a) If it is determined that Executive would be subject to the event that the severance and other benefits provided for in this Agreement to Employee (the “Benefit”), determined without regard to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of excise tax imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”") (a "Parachute Tax"), and as a result of the receipt of any payment or other event (iicollectively a "Payment"), then the Company will pay to Executive an additional payment or payments (a "Gross-Up Payment") be subject in an amount equal to the excise tax imposed sum of (i) all taxes payable by Executive under Section 4999 of the Code or any interest or penalties applicable to the Payment and the Gross-Up Payment and (ii) all federal, state and local income and employment taxes payable 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”), then Employee shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”. (b) in an All determinations required to be made under this Section 5, including whether a Parachute Tax is payable by Executive and the amount sufficient of such Parachute Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by the nationally recognized firm of certified public accountants (the "Accounting Firm") used by the Company as its auditors prior to reimburse Employee for the Sale of the Company (or, if such Accounting Firm declines to serve, the Accounting Firm shall be a nationally recognized firm of certified public accountants selected by the Company). For purposes of making the calculations required by this Section, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, provided that the Accounting Firm's determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). The Accounting Firm shall be directed by the Company or Executive to submit its preliminary determination and detailed supporting calculations to both (A) such Excise Taxthe Company and Executive within 15 calendar days after the determination date, and (B) the incomeif applicable, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged such time or times as may be requested by the Company or Executive. If the Accounting Firm determines that any Parachute Tax is payable by Executive, the Company shall pay the required Gross-Up Payment to, or for general audit purposes the benefit of, Executive within five business days after receipt of such determination and calculations. If the Accounting Firm determines that no Parachute Tax is payable by Executive, it shall, at the same time as it makes such determination, furnish Executive with an opinion and supporting calculations that he has substantial authority not to report any Parachute Tax on his federal tax return. Any good faith determination by the Accounting Firm as to the amount of the day prior Gross-Up Payment shall be binding upon the Company and Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce the Company's obligation to the effective date provide any Gross-Up Payments that shall be due as a result of such contrary determination. As a result of the Change uncertainty in the application of Control shall perform Code Section 4999 at the foregoing calculations. The time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Company shall bear all expenses should have been made (an "Underpayment"), consistent with respect to the determinations by such accounting firm calculations required to be made hereunder. The accounting firm engaged In the event that the Company exhausts or fails to pursue its remedies pursuant to Section 5(f) hereof and Executive thereafter is required to make a payment of any Parachute Tax, Executive shall direct the determinations hereunder shall provide Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its calculations, together with determination and detailed supporting documentationcalculations to both the Company and Executive as promptly as possible. Any such Underpayment plus applicable interest and penalty taxes shall be promptly paid by the Company to, or for the benefit of, Executive within five business days after receipt of such determination and calculations. (c) The Company and Executive shall each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by Section 5(b) hereof. (d) The federal tax returns filed by Executive (or any filing made by a consolidated tax group which includes the Company) shall be prepared and filed on a basis consistent with the determination of the Accounting Firm with respect to the Parachute Tax payable by Executive. Executive shall make proper payment of the amount of any Parachute Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of the applicable sections of his federal income tax return as filed with the Internal Revenue Service, and such other documents reasonably requested by the Company, evidencing such payment. If prior to Employee the filing of Executive's federal income tax return, the Accounting Firm determines in good faith that the amount of the Gross-Up Payment should be reduced, Executive shall within fifteen five business days pay to the Company the amount of such reduction. (15e) calendar The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section shall be borne by the Company. If such fees and expenses are initially advanced by Executive, the Company shall reimburse Executive the full amount of such fees and expenses within five business days after receipt from Executive of a statement therefor and reasonable evidence of his payment thereof. (f) In the event that the Internal Revenue Service claims that any payment or benefit received by Executive from the Company constitutes an "excess parachute payment" within the meaning of Code Section 280G(b)(1), Executive shall notify the Company in writing of such claim. Such notification shall be given as soon as practicable but not later than 10 business days after Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which Employee’s right such claim is requested to be paid. Executive shall not pay such claim prior to the Benefit is triggered (if requested at that time by expiration of the 30-day period following the date on which Executive gives such notice to the Company or by Employee) (or such other time as shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall (i) give the Company any information reasonably requested by the Company or by Employee. If relating to such claim; (ii) take such action in connection with contesting such claim as the accounting firm determines that no Excise Tax is payable Company shall reasonably request in writing from time to time, including without limitation, accepting legal representation with respect to the Benefit, it shall furnish such claim by an attorney reasonably selected by the Company and Employee reasonably satisfactory to Executive; (iii) cooperate with the Company in good faith in order to effectively contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including, but not limited to, additional interest and penalties and related legal, consulting or other similar fees) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an opinion reasonably acceptable after-tax basis, for and against for any Parachute Tax or income tax or other tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (g) The Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to Employee pay the tax claimed and xxx for a refund or contest the claim in any permissible manner and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that no Excise if the Company directs Executive to pay such claim and xxx for a refund or otherwise contest such claim, the Company shall advance the amount of such payment together with any reasonable legal fees or other expenses incurred by Executive in connection with such request to Executive on an interest-free basis, and shall indemnify and hold Executive harmless, on an after tax basis, from any Parachute Tax will be (or other tax including interest and penalties with respect thereto) imposed with respect to such Benefitadvance or with respect to any imputed income with respect to such advance; and provided, further, that if Executive is required to extend the statue of limitations to enable the Company to contest such claim, Executive may limit this extension solely to such contested amount. Any good faith determinations The Company's control of the accounting firm made hereunder contest shall be finallimited to issues with respect to which a corporate deduction would be disallowed pursuant to Code Section 280G and Executive shall be entitled to settle or contest, binding and conclusive upon as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. In addition, no position may be taken nor any final resolution be agreed to by the Company without Executive's consent if such position or resolution could reasonably be expected to adversely affect Executive unrelated to matters covered hereto. (h) If, after the receipt by Executive of an amount advanced by the Company in connection with the contest of the Parachute Tax claim, Executive receives any refund with respect to such claim, Executive shall promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto); provided, however, if the amount of that refund exceeds the amount advanced by the Company Executive may retain such excess. If, after the receipt by Executive of an amount advanced by the Company in connection with a Parachute Tax claim, a determination is made that Executive shall not be entitled to any refund with respect to such claim and Employeethe Company does not notify Executive in writing of its intent to contest the denial of such refund prior to the expiration of 30 days after such determination such advance shall be deemed to be in consideration for services rendered after the date of Executive's termination.

Parachute Payments. In the event that the severance severance, acceleration of Equity Awards and other benefits provided for in this Agreement to Employee (the “BenefitAgreement Benefits”), determined without regard together with benefits otherwise payable to any additional payment required under this section 4Executive, would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G (as it may be amended or replaced) of the Internal Revenue Code of 1986, as amended or replaced (the “Code”), and (ii) but for this Section 7.3, would be subject to the excise tax imposed by Section 4999 (as it may be amended or replaced) of the Code or any interest or penalties payable 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 Employee Executive’s Agreement Benefits shall be entitled either: (a) provided to receive from Executive in full, or (b) provided to Executive only as to such lesser extent that would result in no portion of such Agreement Benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such Agreement Benefits may be taxable under the Excise Tax. Unless the Company an additional payment and Executive otherwise agree in writing, any determination required under this Section 7.3 shall be made in writing in good faith by the Company’s independent registered accounting firm or such other nationally or regionally recognized accounting firm selected by the Company (the “Gross-Up PaymentAccountants”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. In the event of a reduction in benefits hereunder, Executive shall be given the choice, subject to approval by the Company, of which benefits to reduce; provided that such reduction achieves the result specified in clause (b) of this Section 7.3. For purposes of making the calculations required by this Section 7.3, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in an amount sufficient order to reimburse Employee for both (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided make a determination under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations7.3. The Company shall bear all expenses costs the Accountants may reasonably incur in connection with respect to the determinations any calculations contemplated by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeethis Section 7.3.

Parachute Payments. In If any severance, accelerated vesting or other payment or benefit Executive would receive pursuant to a change in control from the event that the severance and other benefits provided for in this Agreement to Employee Company or otherwise (the “Benefit”), determined without regard to any additional payment required under this section 4, "Payment") would (i) constitute “a "parachute payments” payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”"), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee such Payment shall be entitled reduced to receive from the Company an additional payment Reduced Amount. The "Reduced Amount" shall be either (x) the “Gross-Up largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (B) all computed at the incomehighest applicable marginal rate), exciseresults in Executive's receipt, employment and any other taxes imposed on an after-tax basis, of the Gross Up Payment provided under this Section 4greater amount of the Payment. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control change in control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the change in control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee Executive within fifteen (15) calendar days after before the closing date on which Employee’s right to of the Benefit is triggered change in control (if requested at that time by the Company or by EmployeeExecutive) or such other time as requested by the Company or by EmployeeExecutive. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the Benefitapplication of the Reduced Amount, it shall furnish the Company and Employee Executive with an opinion reasonably acceptable to Employee Executive that no Excise Tax will be imposed with respect to such BenefitPayment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employee.Executive

Parachute Payments. In If any payment or benefit the event that the severance and other benefits provided for in Employee would receive from PGIC pursuant to this Agreement to Employee or otherwise (the “BenefitPayment”), determined without regard to any additional payment required under this section 4, ) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee shall be entitled to will receive from the Company an additional payment (the “Gross-Up Paymentup”) in an amount sufficient to reimburse Employee for both (A) from PGIC such that after taking into account all applicable federal, state and local employment taxes, income taxes, the Excise Tax, Tax and (B) the income, excise, employment and any other all applicable taxes imposed on the Gross Up Payment provided under this Section 4Gross-up (all computed at the highest applicable marginal rate), results in the Employee’s receipt, on an after-tax basis, of the full amount of the Payment. The PGIC’s principal outside accounting firm engaged or principal outside tax advisors, as selected by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear PGIC and Employee, will make all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder and shall provide its calculations, together with detailed supporting documentation, to PGIC and the Company and to Employee within fifteen (15) calendar days after the date on which the Employee’s right to the Benefit a Payment is triggered (if requested at that time by the Company PGIC or by Employee) or such other time as requested by PGIC or the Company or by Employee. If the The accounting firm determines that no Excise Tax is payable with respect to the Benefit, it or tax advisors shall furnish PGIC and the Company and Employee with an opinion reasonably acceptable to the Employee that no regarding the application of the Excise Tax will be imposed with respect to such BenefitPayment. Any good faith determinations of PGIC shall be entitled to rely upon the accounting firm made hereunder firm’s or tax advisors’ determinations, as applicable, which shall be final, binding and conclusive upon the Company on Employee and EmployeePGIC.

Parachute Payments. In Notwithstanding anything to the contrary herein or in any Benefit Plan, in the event it shall be determined that any monetary amounts or benefits due or payable by the severance and other benefits provided for in this Agreement Company to Employee Executive (the “Benefit”)whether paid or payable, determined without regard or due or distributed) are or will become subject to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by under Section 4999 of the Code or any interest or penalties payable with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise TaxTaxes”), then Employee the amounts or benefits otherwise due or payable to Executive pursuant to this Agreement or any Benefit Plans shall be entitled reduced to receive from the Company an additional payment extent necessary so that no portion of such amounts or benefits shall be subject to the Excise Taxes, but only if (i) the “Gross-Up Payment”net amount of such amounts and benefits, as so reduced (and after the imposition of the total amount of taxes under federal, state and local law on such amounts and benefits), is greater than (ii) in an amount sufficient to reimburse Employee for both the excess of (A) the net amount of such Excise Taxamounts and benefits, without reduction (but after imposition of the total amount of taxes under federal, state and local law) over (B) the income, excise, employment amount of Excise Taxes to which Executive would be subject on such unreduced amounts and any other taxes benefits. If it is determined that Excise Taxes will or might be imposed on Executive in the Gross Up Payment provided under absence of such reduction, the Company and Executive shall make good faith efforts to seek to identify and pursue reasonable action to avoid or reduce the amount of Excise Taxes; provided, however, that this sentence shall not be construed to require Executive to accept any further reduction in the amount or benefits that would be payable to him in the absence of this sentence. The provisions of this Section 411(d) shall override and control any inconsistent provision in the Xxxxxx Products, Inc. Long-Term Capital Accumulation Plan. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the All determinations by such accounting firm required to be made hereunder. The under this Section 11(d), including whether reduction is required, the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made in good faith by an independent accounting firm engaged selected by the Company in accordance with applicable law (the “Accounting Firm”), in consultation with tax counsel reasonably acceptable to Executive. In the event that such Accounting Firm is serving as accountant or auditor for the individual, entity or group acting as the acquirer in a Change in Control, the Company shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall provide its calculations, together with detailed supporting documentation, then be referred to herein as the Company Accounting Firm). All fees and to Employee within fifteen (15) calendar days after expenses of the date on which Employee’s right to the Benefit is triggered (if requested at that time Accounting Firm shall be borne solely by the Company or by Employee) or such other time as requested by the Company or by EmployeeCompany. If the accounting firm Accounting Firm determines that no Excise Tax excise tax under Section 4999 of the Code is payable with respect to the Benefitby Executive, it shall furnish the Company and Employee shall request that the Accounting Firm furnish Executive with an opinion reasonably acceptable written guidance that failure to Employee that no Excise Tax will be imposed with respect to report such Benefit. Any good faith determinations excise tax on Executive’s applicable federal income tax return would not result in the imposition of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeea negligence or similar penalty.

Parachute Payments. In the event that the severance severance, acceleration of Equity Awards and other benefits provided for in this Agreement to Employee (the “BenefitAgreement Benefits”), determined without regard together with benefits otherwise payable to any additional payment required under this section 4Executive, would (i) constitute a “parachute paymentspayment” within the meaning of Section section 280G (as it may be amended or replaced) of the Internal Revenue Code of 1986, as amended or replaced (the “Code”), and (ii) but for this Section 7.3, would be subject to the excise tax imposed by Section 4999 (as it may be amended or replaced) of the Code or any interest or penalties payable 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 Employee Executive’s Agreement Benefits shall be entitled either: (a) provided to receive from Executive in full, or (b) provided to Executive only as to such lesser extent that would result in no portion of such Agreement Benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such Agreement Benefits may be taxable under the Excise Tax. Unless the Company an additional payment and Executive otherwise agree in writing, any determination required under this Section 7.3 shall be made in writing in good faith by the Company’s independent registered accounting firm or such other nationally or regionally recognized accounting firm selected by the Company (the “Gross-Up PaymentAccountants”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. In the event of a reduction in benefits hereunder, Executive shall be given the choice, subject to approval by the Company, of which benefits to reduce; provided that such reduction achieves the result specified in clause (b) of this Section 7.3. For purposes of making the calculations required by this Section 7.3, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in an amount sufficient order to reimburse Employee for both (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided make a determination under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations7.3. The Company shall bear all expenses costs the Accountants may reasonably incur in connection with respect to the determinations any calculations contemplated by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeethis Section 7.3.

Parachute Payments. In a. Notwithstanding anything to the event that the severance and other benefits provided for contrary contained in this Agreement, to the extent that any amount, stock option, restricted stock, RSUs, other equity awards or benefits paid or distributed to the Executive pursuant to this Agreement to Employee or any other agreement or arrangement between the Company and the Executive (collectively, the “Benefit280G Payments”), determined without regard to any additional payment required under this section 4, would ) (ia) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (iib) but for this Section 16, would be subject to the excise tax imposed by Section 4999 of the Code Code, then the 280G Payments shall be payable either (i) in full or any interest or penalties payable with respect (ii) in such lesser amount which would result in no portion of such 280G Payments being subject to such excise tax under Section 4999 of the Code; whichever of the foregoing amounts, taking into account the applicable federal, state and local income or excise taxes (including the excise tax imposed by Section 4999) results in the Executive’s receipt on an after-tax basis, of the greatest amount of benefits under this Agreement, notwithstanding that all or some portion of such excise taxbenefits may be taxable under Section 4999 of the Code. Unless the Executive and the Company otherwise agree in writing, together with any such interest and penalties, are hereinafter collectively referred to as determination required under this Section shall be made in writing by an independent public accountant selected by the Company (the “Excise TaxAccountants”), then Employee whose determination shall be entitled to receive from conclusive and binding upon the Company an additional payment (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, Executive and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit all purposes. For purposes as of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the day prior Code. The Company and the Executive shall furnish to the effective date of Accountants such information and documents as the Change of Control shall perform the foregoing calculationsAccountants may reasonably request in order to make a determination under this Section. The Company shall bear all expenses costs the Accountants may reasonably incur in connection with respect to any calculations contemplated by this Section, as well as any reasonable legal or accountant expenses, or any additional taxes, that the determinations Executive may incur as a result of any calculation errors made by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to Accountant and/or the Company and to Employee within fifteen (15) calendar days after in connection with the date on which Employee’s right to the Benefit is triggered (if requested at that time Code Section 4999 excise tax analysis contemplated by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeethis Section.

Parachute Payments. In Notwithstanding any other provision in this Agreement or any other agreement or arrangement between the Company or Parent and you with respect to compensation or benefits (each an “Other Arrangement”), in the event that the severance and other benefits provided for in this Agreement to Employee (the “Benefit”), determined without regard to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning provisions of Section Sections 280G and 4999 of the Internal Revenue Code of 1986, as amended amended, or any successor provisions (the “Code”), and would cause you to receive a greater after-tax benefit from the Capped Benefit (iias defined below) than from the amounts (including the monetary value of any non-cash benefits) otherwise payable pursuant to this Agreement or any Other Arrangement (the “Specified Benefits”), the Capped Benefit shall be subject paid to you in lieu of the Specified Benefits. The “Capped Benefit” shall equal the Specified Benefits, reduced by the amount necessary to prevent any portion of the Specified Benefits from being a “parachute payment” as defined in Section 280G(b)(2) of the Code. The Capped Benefit would therefore equal 2.99 multiplied by your applicable “base amount” as defined in Section 280G(b)(3) of the Code. For purposes of determining whether you would receive a greater after-tax benefit from the Capped Benefit than from the Specified Benefits, there shall be taken into account any excise tax that would be imposed by under Section 4999 of the Code or any interest or penalties payable with and all federal, state and local taxes required to be paid by you in respect to of the receipt of such excise tax payments. The parties acknowledge that the application of Section 280G is uncertain in many respects and agree that the Company shall make all calculations and determinations under this section (such excise taxincluding application and interpretation of the Code and related regulatory, together with any such interest administrative and penaltiesjudicial authorities) in good faith, are hereinafter collectively referred to as the “Excise Tax”), then Employee which calculations and determinations shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculationsconclusive absent manifest error. The Company shall bear all expenses provide you with respect a reasonable opportunity to review and comment on the determinations by such accounting firm required Company’s calculations of the Capped Benefit and to request which of the Specified Benefits shall be made hereunderreduced. The accounting firm engaged If, after payment of any amount under this Agreement or any Other Arrangement, it is determined that the calculation of the Capped Benefit was calculated incorrectly, the amount of the Capped Benefit will be adjusted, the Company shall pay to make the determinations hereunder you any additional amount that should have been paid to you, and you shall provide its calculations, together with detailed supporting documentation, repay to the Company and any amount that should not have been paid to Employee within fifteen (15you, in each case with interest at the discount rate applicable under Section 280G(d)(4) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeCode.

Parachute Payments. In the event 11.1 If it is determined (as hereafter provided) that the severance and other benefits provided for in this Agreement to Employee (the “Benefit”), determined without regard to any additional payment required under this section 4, Executive would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Code Section 4999 to which Executive would not have been subject but for any payment or stock option or restricted stock vesting (collectively a "Payment") occurring pursuant to the terms of this Agreement or otherwise as in connection with a change in the ownership or effective control of Employer or a change in the ownership of a substantial portion of the assets of the Employer within the meaning of Code or any interest or penalties payable with respect to such excise tax Section 280G(b)(2)(A)(i) (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise a "Parachute Tax”"), then Employee Executive shall be entitled to receive from the Company an additional payment or payments (the “a "Gross-Up Payment”") in an amount sufficient to reimburse Employee for both such that, after payment by Executive of all taxes (Aincluding any Parachute Tax) such Excise Taximposed upon the Gross-Up Payment, and (B) Executive retains an amount of the income, excise, employment and any other taxes imposed on the Gross Gross-Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as equal to two-thirds (2/3) of the day prior Parachute Tax imposed upon the Payment. 11.2 Subject to the effective date provisions of the Change of Control shall perform the foregoing calculations. The Company shall bear Section 11.1 hereof, all expenses with respect to the determinations by such accounting firm required to be made hereunderunder this Section 11, including whether a Parachute Tax is payable by Executive and the amount of such Parachute Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by the nationally recognized firm of certified public accountants (the "Accounting Firm") used by the Company prior to the Change in Control (or, if such Accounting Firm declines to serve, the Accounting Firm shall be a nationally recognized firm of certified public accountants selected by the Company). For purposes of making the calculations required by this Section, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, provided that the Accounting Firm's determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). The accounting firm engaged Accounting Firm shall be directed by the Company or Executive to make the determinations hereunder shall provide submit its calculations, together with preliminary determination and detailed supporting documentation, calculations to both the Company and to Employee Executive within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (determination date, if requested at that applicable, and any other such time by the Company or by Employee) or such other time times as may be requested by the Company or by EmployeeExecutive. If the accounting firm Accounting Firm determines that any Parachute Tax is payable by Executive, the Company shall pay the required Gross-Up Payment to, or for the benefit of, Executive within five business days after receipt of such determination and calculations. If the Accounting Firm determines that no Excise Parachute Tax is payable by Executive, it shall, at the same time as it makes such determination, furnish Executive with an opinion that he has substantial authority not to report any Parachute Tax on his federal tax return. Any good faith determination by the Accounting Firm as to the amount of the Gross-Up Payment shall be binding upon the Company and Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce the Company's obligation to provide any Gross-Up Payments that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Code Section 4999 at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Company should have been made (an "Underpayment"), consistent with the calculations required to be made hereunder. In the event of a final determination by the Internal Revenue Service that an Underpayment has occurred, Executive shall direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Company and Executive as promptly as possible. Any such Underpayment shall be promptly paid by the Company to, or for the benefit of, Executive within five business days after receipt of such determination and calculations. 11.3 The Company and Executive shall each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by Section 11.2 hereof. 11.4 The federal tax returns filed by Executive (and any filing made by a consolidated tax group which includes the Company) shall be prepared and filed on a basis consistent with the determination of the Accounting Firm with respect to the BenefitParachute Tax payable by Executive, it as the same may be amended or supplemented. Executive shall furnish make proper payment of the amount of any Parachute Tax, and at the request of the Company, provide to the Company true and Employee correct copies (with an opinion any amendments) of his federal income tax return as filed with the Internal Revenue Service, and such other documents reasonably acceptable to Employee that no Excise Tax will be imposed with respect to requested by the Company, evidencing such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeepayment.

Parachute Payments. In the event that the severance and other benefits provided for Notwithstanding anything contained in this Agreement to the contrary, to the extent that payments and benefits provided under this Agreement or otherwise to the Employee (such payments or benefits are collectively referred to as the “Payments”) would be subject to the excise tax (the “BenefitExcise Tax”) imposed under Section 4999 of the Code, the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to the Employee shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by such the Employee shall exceed the net after-tax benefit received by him if no such reduction was made. For purposes of this Section 9(d), determined without regard to any additional payment required under this section 4, would “net after-tax benefit” shall mean (i) the Payments which the Employee receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to the Employee (based on the rate in effect for such year as set forth in the Code as in effect at the time of 1986the first payment of the foregoing), as amended less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the Code. The foregoing determination will be made by a nationally recognized accounting firm (the “CodeAccounting Firm”) selected by the Employee and reasonably acceptable to the Company (which may be, but will not be required to be, the Company's independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the affected Employee and the Company within fifteen (15) calendar days after the Employee’s date of Separation from Service. If the Accounting Firm determines that such reduction is required by this Section 9(d), and (ii) no Payment constitutes non-qualified deferred compensation that is subject to Section 409A of the Code, the Employee, in the Employee’s sole and absolute discretion, may determine which Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable with respect to such excise tax (such excise taxCode, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an shall pay such reduced amount sufficient to reimburse Employee for both (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employeehim. If the accounting firm Accounting Firm determines that no Excise Tax a reduction is payable required by this Section 9(d), and any Payment constitutes a “deferral of compensation” within the meaning of Section 409A of the Code, then the Payments shall be reduced in the following order: (a) reduction in the cash severance payments described herein (with respect such reduction being applied to the Benefitpayments in the reverse order in which they would otherwise be made, it that is, later payments shall furnish be reduced before earlier payments); (b) reduction in any other cash payments payable to the Company and Employee (with an opinion reasonably acceptable such reduction being applied to Employee the payments in the reverse order in which they would otherwise be made, that no Excise Tax will is, later payments shall be imposed with respect to such Benefit. Any good faith determinations reduced before earlier payments); (c) cancellation of acceleration of vesting on any equity awards for which the exercise price exceeds the then fair market value of the accounting firm made hereunder underlying equity; and (d) cancellation of acceleration of vesting of equity awards not covered under (c) above; provided, however that in the event that acceleration of vesting of equity awards is to be cancelled, such acceleration of vesting shall be finalcancelled in the reverse order of the date of grant of such equity awards, binding and conclusive upon the Company and Employeethat is, later equity awards shall be canceled before earlier equity awards.

Parachute Payments. In the event 12.1 If it is determined (as hereafter provided) that the severance and other benefits provided for in this Agreement to Employee (the “Benefit”), determined without regard to any additional payment required under this section 4, Executive would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Code Section 4999 to which Executive would not have been subject but for any payment or stock option or restricted stock vesting (collectively a “Payment”) occurring pursuant to the terms of this Agreement or otherwise as in connection with a change in the ownership or effective control of Employer or a change in the ownership of a substantial portion of the assets of the Employer within the meaning of Code or any interest or penalties payable with respect to such excise tax Section 280G(b)(2)(A)(i) (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the a “Excise Parachute Tax”), then Employee Executive shall be entitled to receive from the Company an additional payment or payments (the a “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both such that, after payment by Executive of all taxes (Aincluding any Parachute Tax) such Excise Taximposed upon the Gross-Up Payment, and (B) Executive retains an amount of the income, excise, employment and any other taxes imposed on the Gross Gross-Up Payment provided under equal to the Parachute Tax imposed upon the Payment (and taxes on such additional payments pursuant to this Section 411). The accounting firm engaged by Gross-up Payment shall be made no later than the Company for general audit purposes as last day of Executive’s taxable year following the taxable year in which Executive remits any taxes under Section 4999 of the day prior Code to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect Internal Revenue Service. 12.2 Subject to the provisions of Section 12.1 hereof, all determinations by such accounting firm required to be made hereunderunder this Section 12, including whether a Parachute Tax is payable by Executive and the amount of such Parachute Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by the nationally recognized firm of certified public accountants (the “Accounting Firm”) used by the Company prior to the Change in Control (or, if such Accounting Firm declines to serve, the Accounting Firm shall be a nationally recognized firm of certified public accountants selected by the Company). For purposes of making the calculations required by this Section, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, provided that the Accounting Firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). The accounting firm engaged Accounting Firm shall be directed by the Company or Executive to make the determinations hereunder shall provide submit its calculations, together with preliminary determination and detailed supporting documentation, calculations to both the Company and to Employee Executive within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (determination date, if requested at that applicable, and any other such time by the Company or by Employee) or such other time times as may be requested by the Company or by EmployeeExecutive. If the accounting firm Accounting Firm determines that any Parachute Tax is payable by Executive, the Company shall pay the required Gross-Up Payment to, or for the benefit of, Executive within five business days after receipt of such determination and calculations and in any event by no later than the last day of the taxable year of the Executive following the taxable year in which the related taxes must be remitted to the relevant taxing authorities. If the Accounting Firm determines that no Excise Parachute Tax is payable by Executive, it shall, at the same time as it makes such determination, furnish Executive with an opinion that he has substantial authority not to report any Parachute Tax on his federal tax return. Any good faith determination by the Accounting Firm as to the amount of the Gross-Up Payment shall be binding upon the Company and Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce the Company’s obligation to provide any Gross-Up Payments that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Code Section 4999 at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Company should have been made (an “Underpayment”), consistent with the calculations required to be made hereunder. In the event of a final determination by the Internal Revenue Service that an Underpayment has occurred, Executive shall direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Company and Executive as promptly as possible. Any such Underpayment shall be promptly paid by the Company to, or for the benefit of, Executive within five business days after receipt of such determination and calculations. Provided, however, that in no event shall any Underpayment be made later than the last day of the taxable year of the Executive following the taxable year in which the related taxes must be remitted to the relevant taxing authorities. 12.3 The Company and Executive shall each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by Section 12.2 hereof. 12.4 The federal tax returns filed by Executive (and any filing made by a consolidated tax group which includes the Company) shall be prepared and filed on a basis consistent with the determination of the Accounting Firm with respect to the BenefitParachute Tax payable by Executive, it as the same may be amended or supplemented. Executive shall furnish make proper payment of the amount of any Parachute Tax, and at the request of the Company, provide to the Company true and Employee correct copies (with an opinion any amendments) of his federal income tax return as filed with the Internal Revenue Service, and such other documents reasonably acceptable to Employee that no Excise Tax will be imposed with respect to requested by the Company, evidencing such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeepayment.

Parachute Payments. (a) In the event that any payment or distribution by the severance and other benefits provided Company to or for in the benefit of the Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement to Employee (the “Benefit”)or otherwise, but determined without regard to any additional payment required payments under this section 4, would Section 9(a)) (ia "PAYMENT") constitute “parachute payments” within is determined to be subject to the meaning of excise tax imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”"CODE"), and (ii) be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable are incurred by the Employee 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”"EXCISE TAX"), then Employee shall be entitled to receive from the Company shall pay to the Employee an additional payment (a "GROSS-UP PAYMENT") in an amount such that after payment by the “Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment”) in , the Employee retains an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (B) of the income, excise, employment and any other taxes imposed on the Gross Gross-Up Payment provided equal to the Excise Tax imposed upon the Payments. (b) Subject to the provisions of Section 9(c), all determinations required to be made under this Section 4. The 9, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm engaged which is satisfactory to the Company (the "ACCOUNTING FIRM"), which shall provide detailed supporting calculations both to the Company and the Employee within 15 business days after such determinations are requested by the Employee or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9(b), shall be paid by the Company for general audit purposes as to the Employee within five days after the Company's receipt of the day prior to the effective date Accounting Firm's determination. As a result of the Change uncertainty in the application of Control shall perform Section 4999 of the foregoing calculations. The Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company shall bear all expenses should have been made ("UNDERPAYMENT"), consistent with respect to the determinations by such accounting firm calculations required to be made hereunder. The accounting firm engaged In the event that the Company exhausts its remedies pursuant to Section 9(c) and the Employee thereafter is required to make a payment of any Excise Tax, the determinations hereunder Accounting Firm shall provide its calculations, together with detailed supporting documentation, to determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company and to or for the benefit of the Employee. (c) The Employee within fifteen (15) calendar shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Employee is informed in writing of such claim and shall apprise the Company of the nature of such claim, and the date on which Employee’s right such claim is requested to be paid. The Employee shall not pay such claim prior to the Benefit is triggered (if requested at that time by expiration of the 30-day period following the date on which it gives such notice to the Company or by Employee) (or such other time as shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Employee in writing prior to the expiration of such period that it desires to contest such claim, the Employee shall: (i) give the Company any information reasonably requested by the Company or by Employee. If relating to such claim, (ii) take such action in connection with contesting such claim as the accounting firm determines that no Excise Tax is payable Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Benefit, it shall furnish Company, (iii) cooperate with the Company in good faith in order to contest such claim effectively, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Employee with harmless, on an opinion reasonably acceptable to Employee that no after-tax basis, for any Excise Tax will be or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 9(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Employee to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Employee to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Employee, on an interest-free basis and shall indemnify and hold the Employee harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such Benefit. Any good faith determinations advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the accounting firm made hereunder statute of limitations relating to payment of taxes for the taxable year of the Employee with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be finallimited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Employee shall be entitled to settle or contest, binding and conclusive upon as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by the Employee of an amount advanced by the Company pursuant to Section 9(c) the Employee becomes entitled to receive any refund with respect to such claim, or if the actual amount of the Excise Tax is less than the amount of the Gross-Up Payment, the Employee shall (subject to the Company's complying with the requirements of Section 9(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto) or the amount of such difference. If, after the receipt by the Employee of an amount advanced by the Company pursuant to Section 9(c), a determination is made that the Employee shall not be entitled to any refund with respect to such claim and Employeethe Company does not notify the Employee in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Parachute Payments. In If any severance, accelerated vesting or other payment or benefit Executive would receive pursuant to a Change in Control from the event that the severance and other benefits provided for in this Agreement to Employee Company or otherwise (the “BenefitPayment”), determined without regard to any additional payment required whether under this section 4Agreement under any other agreement, would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 such Payment shall be reduced to the Reduced Amount The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), then Employee shall be entitled to receive from results in Executive’s receipt, on an after-tax basis, of the Company an additional payment (greater amount of the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of in Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee Executive within fifteen (15) calendar days after before the closing date on which Employee’s right to of the Benefit is triggered Change in Control (if requested at that time by the Company or by EmployeeExecutive) or such other time as requested by the Company or by EmployeeExecutive. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the Benefitapplication of the Reduced Amount, it shall furnish the Company and Employee Executive· with an opinion reasonably acceptable to Employee Executive that no Excise Tax will be imposed with respect to such BenefitPayment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeExecutive.

Parachute Payments. In the event 11.1 If it is determined (as hereafter provided) that the severance and other benefits provided for in this Agreement to Employee (the “Benefit”), determined without regard to any additional payment required under this section 4, Executive would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Code Section 4999 to which Executive would not have been subject but for any payment or stock option or restricted stock vesting (collectively a “Payment”) occurring pursuant to the terms of this Agreement or otherwise as in connection with a change in the ownership or effective control of Employer or a change in the ownership of a substantial portion of the assets of the Employer within the meaning of Code or any interest or penalties payable with respect to such excise tax Section 280G(b)(2)(A)(i) (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the a “Excise Parachute Tax”), then Employee Executive shall be entitled to receive from the Company an additional payment or payments (the a “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both such that, after payment by Executive of all taxes (Aincluding any Parachute Tax) such Excise Taximposed upon the Gross-Up Payment, and (B) Executive retains an amount of the income, excise, employment and any other taxes imposed on the Gross Gross-Up Payment provided under equal to the Parachute Tax imposed upon the Payment (and taxes on such additional payments pursuant to this Section 411). The accounting firm engaged by Gross-up Payment shall be made no later than the Company for general audit purposes as last day of Executive’s taxable year following the taxable year in which Executive remits any taxes under Section 4999 of the day prior Code to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect Internal Revenue Service. 11.2 Subject to the provisions of Section 11.1 hereof, all determinations by such accounting firm required to be made hereunderunder this Section 11, including whether a Parachute Tax is payable by Executive and the amount of such Parachute Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by the nationally recognized firm of certified public accountants (the “Accounting Firm”) used by the Company prior to the Change in Control (or, if such Accounting Firm declines to serve, the Accounting Firm shall be a nationally recognized firm of certified public accountants selected by the Company). For purposes of making the calculations required by this Section, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, provided that the Accounting Firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). The accounting firm engaged Accounting Firm shall be directed by the Company or Executive to make the determinations hereunder shall provide submit its calculations, together with preliminary determination and detailed supporting documentation, calculations to both the Company and to Employee Executive within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (determination date, if requested at that applicable, and any other such time by the Company or by Employee) or such other time times as may be requested by the Company or by EmployeeExecutive. If the accounting firm Accounting Firm determines that any Parachute Tax is payable by Executive, the Company shall pay the required Gross-Up Payment to, or for the benefit of, Executive within five business days after receipt of such determination and calculations. If the Accounting Firm determines that no Excise Parachute Tax is payable by Executive, it shall, at the same time as it makes such determination, furnish Executive with an opinion that he has substantial authority not to report any Parachute Tax on his federal tax return. Any good faith determination by the Accounting Firm as to the amount of the Gross-Up Payment shall be binding upon the Company and Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce the Company’s obligation to provide any Gross-Up Payments that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Code Section 4999 at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Company should have been made (an “Underpayment”), consistent with the calculations required to be made hereunder. In the event of a final determination by the Internal Revenue Service that an Underpayment has occurred, Executive shall direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Company and Executive as promptly as possible. Any such Underpayment shall be promptly paid by the Company to, or for the benefit of, Executive within five business days after receipt of such determination and calculations. 11.3 The Company and Executive shall each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by Section 11.2 hereof. 11.4 The federal tax returns filed by Executive (and any filing made by a consolidated tax group which includes the Company) shall be prepared and filed on a basis consistent with the determination of the Accounting Firm with respect to the BenefitParachute Tax payable by Executive, it as the same may be amended or supplemented. Executive shall furnish make proper payment of the amount of any Parachute Tax, and at the request of the Company, provide to the Company true and Employee correct copies (with an opinion any amendments) of his federal income tax return as filed with the Internal Revenue Service, and such other documents reasonably acceptable to Employee that no Excise Tax will be imposed with respect to requested by the Company, evidencing such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeepayment.

Parachute Payments. In Notwithstanding anything to the contrary in this Agreement, in the event that any payment, benefit or distribution by the severance and other benefits provided Company to or for in the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement to Employee or otherwise (the a “BenefitPayment”), determined without regard would be subject to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of excise tax imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable with respect to such excise tax (such excise tax, together with any such interest and or penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee shall be entitled to receive from the Company shall pay to the Executive an additional payment (the a “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged that after payment by the Company for general audit purposes as Executive of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen taxes (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company including any interest or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be penalties imposed with respect to such Benefit. Any good faith determinations taxes), including any Excise Tax imposed on any Gross-Up Payment, the Executive retains an amount of the accounting firm made hereunder Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company and the Executive shall be finalmake an initial determination as to whether a Gross-Up Payment is required and the amount of any such Gross-Up Payment. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service which, binding and conclusive upon if successful, would require the Company to make a Gross-Up Payment (or a Gross-Up Payment in excess of that, if any, initially determined by the Company and Employeethe Executive) within 10 business days of the receipt of such claim. The Company shall notify the Executive in writing at least 10 business days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If the Company decides to contest such claim, then the Executive shall cooperate fully with the Company in such action; provided, however, the Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Company’s action. If, as a result of the Company’s action with respect to a claim, the Executive receives a refund of any amount paid by the Company with respect to such claim, then the Executive shall promptly pay such refund to the Company. If the Company fails to timely notify the Executive whether it will contest such claim or the Company determines not to contest such claim, then the Company shall immediately pay to the Executive the portion of such claim, if any, which it has not previously paid to the Executive. Notwithstanding anything to the contrary herein, the provisions of Section 7 of the Original Agreement (with respect to Excise Tax gross ups) shall apply with respect to the payment of the First Signing Bonus Payment, Second Signing Bonus Payment and any other payments or benefits, whether pursuant to this Agreement or otherwise, that may be contingent upon the occurrence of the Closing under the Merger Agreement.

Parachute Payments. In (a) It is the objective of this Agreement to maximize Executive’s Net After-Tax Benefit (as defined herein) if payments or benefits provided under this Agreement are subject to excise tax under Section 4999 of the Code. Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit by the severance and other benefits provided Company or otherwise to or for in the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (all such payments and benefits, including the payments and benefits under Section 2(a) and Section 2(b) hereof, being hereinafter referred to Employee (as the “BenefitTotal Payments”), determined without regard to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee the cash severance payments shall first be reduced, and the non-cash severance payments shall thereafter be reduced to the extent necessary so that no portion of the Total Payments shall be entitled subject to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and but only if (Bi) the incomenet amount of such Total Payments, exciseas so reduced (and after subtracting the net amount of federal, employment state and any other local income taxes imposed on such reduced Total Payments and after taking into account the Gross Up Payment provided under this Section 4. phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). (b) The accounting firm engaged Total Payments shall be reduced by the Company for general audit purposes as in the following order: (i) reduction of any cash severance payments otherwise payable to Executive that are exempt from Section 409A of the day prior Code, (ii) reduction of any other cash payments or benefits otherwise payable to Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to the effective date acceleration of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses vesting or payments with respect to any equity award with respect to the determinations by such accounting firm required Company’s common shares that is exempt from Section 409A of the Code, (iii) reduction of any other payments or benefits otherwise payable to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date Executive on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) a pro-rata basis or such other time as requested by manner that complies with Section 409A of the Company or by Employee. If Code, but excluding any payments attributable to the accounting firm determines that no Excise Tax is payable acceleration of vesting and payments with respect to any equity award with respect to the BenefitCompany’s common shares that are exempt from Section 409A of the Code, it shall furnish and (iv) reduction of any payments attributable to the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed acceleration of vesting or payments with respect to such Benefit. Any good faith determinations any other equity award with respect to the Company’s common shares that are exempt from Section 409A of the accounting firm made hereunder Code. (c) All determinations regarding the application of this Section 2(h) shall be final, binding made by an accounting or consulting firm with experience in performing calculations regarding the applicability of Section 280G of the Code and conclusive upon the Excise Tax selected by the Company (“Independent Advisors”). For purposes of determining whether and Employeethe extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the opinion of the Independent Advisors, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. The costs of obtaining such determination and all related fees and expenses (including related fees and expenses incurred in any later audit) shall be borne by the Company. (d) In the event it is later determined that a greater reduction in the Total Payments should have been made to implement the objective and intent of this Section 2(h), the excess amount shall be returned immediately by Executive to the Company.

Parachute Payments. In Notwithstanding anything to the contrary herein or in any Benefit Plan, in the event it shall be determined that any monetary amounts or benefits due or payable by the severance and other benefits provided for in this Agreement Company to Employee Executive (the “Benefit”)whether paid or payable, determined without regard or due or distributed) are or will become subject to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by under Section 4999 of the Code or any interest or penalties payable with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise TaxTaxes”), then Employee the amounts or benefits otherwise due or payable to Executive pursuant to this Agreement or any Benefit Plans shall be entitled reduced to receive from the Company an additional payment extent necessary so that no portion of such amounts or benefits shall be subject to the Excise Taxes, but only if (i) the “Gross-Up Payment”net amount of such amounts and benefits, as so reduced (and after the imposition of the total amount of taxes under federal, state and local law on such amounts and benefits), is greater than (ii) in an amount sufficient to reimburse Employee for both the excess of (A) the net amount of such Excise Taxamounts and benefits, without reduction (but after imposition of the total amount of taxes under federal, state and local law) over (B) the income, excise, employment amount of Excise Taxes to which Executive would be subject on such unreduced amounts and any other taxes benefits. If it is determined that Excise Taxes will or might be imposed on Executive in the Gross Up Payment provided under absence of such reduction, the Company and Executive shall make good faith efforts to seek to identify and pursue reasonable action to avoid or reduce the amount of Excise Taxes; provided, however, that this sentence shall not be construed to require Executive to accept any further reduction in the amount or benefits that would be payable to him in the absence of this sentence. The provisions of this Section 47(d) shall override and control any inconsistent provision in any applicable Benefit Plan. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the All determinations by such accounting firm required to be made hereunder. The under this Section 7(d), including whether reduction is required, the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made in good faith by an independent accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time selected by the Company or by Employee) or such other time as requested in accordance with applicable law (the “Accounting Firm”), in consultation with tax counsel reasonably acceptable to Executive. All fees and expenses of the Accounting Firm shall be borne solely by the Company or by EmployeeCompany. If the accounting firm Accounting Firm determines that no Excise Tax excise tax under Section 4999 of the Code is payable with respect to the Benefitby Executive, it shall furnish the Company and Employee shall request that the Accounting Firm furnish Executive with an opinion reasonably acceptable written guidance that failure to Employee that no Excise Tax will be imposed with respect to report such Benefit. Any good faith determinations excise tax on Executive’s applicable federal income tax return would not result in the imposition of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeea negligence or similar penalty.

Parachute Payments. In (a) Grantee shall bear all expense of, and be solely responsible for, any excise tax imposed by Section 4999 of the event that the severance and other benefits provided for in this Agreement to Employee Code (the “BenefitExcise Tax”); provided, determined without regard however, that any payment or benefit received or to be received by Grantee (whether payable under the terms of this Agreement or any additional payment required other plan, arrangement or agreement with the Company or any of its affiliates) (collectively, the “Payments”) that would constitute a “parachute payment” within the meaning of Section 280G of the Code, shall be reduced to the extent necessary so that no portion thereof shall be subject to the Excise Tax but only if, by reason of such reduction, the net after- tax benefit received by Grantee exceeds the net after-tax benefit that would be received by Grantee if no such reduction was made. If a reduction in payments or benefits constituting “parachute payments” is necessary under this section 4the preceding sentence, would the reduction shall be made in the manner that results in the greatest economic benefit for Grantee. (b) The “net after-tax benefit” shall mean (i) the Payments Grantee receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”), and less (ii) be subject to the excise tax imposed amount of all federal, state and local income and employment taxes payable by Section 4999 of the Code or any interest or penalties payable Grantee with respect to the foregoing calculated at the highest marginal income tax rate for each year in which the foregoing shall be paid to Grantee (based on the rate in effect for such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to year as set forth in the “Excise Tax”Code as in effect at the time of the first payment of the foregoing), then Employee shall be entitled to receive from the Company an additional payment less (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (Biii) the income, excise, employment amount of Excise Tax imposed with respect to the payments and any other taxes imposed on the Gross Up Payment provided under this benefits described in Section 4. 25(a) above. (c) The independent registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change event described in Section 280G(b)(2)(A)(i) of Control the Code shall perform the foregoing calculations. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting such change in control, change of ownership or similar transaction, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. . (d) The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee Grantee within fifteen thirty (1530) calendar days after the date on which EmployeeXxxxxxx’s right to the Benefit a Payment is triggered (if requested at that time by the Company or by EmployeeGrantee) or such other time as reasonably requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such BenefitGrantee. Any good faith determinations of the independent registered public accounting firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeGrantee.

Parachute Payments. In If any payment, distribution or benefit Executive would receive from the event that the severance and other benefits provided for in this Agreement to Employee (the “Benefit”)Company or otherwise, but determined without regard to any additional payment required under this section 4Section 3.2, pursuant to the terms of this Agreement ("Payment"), would (i) constitute “a "parachute payments” payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”"), and (ii) be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee Executive shall be entitled to receive from the Company an additional payment (the “"Gross-Up Payment”") in an amount sufficient to reimburse Employee for both (A) such that shall fund the payment by Executive of any Excise Tax, Tax on the Payment as well as all income and (B) the income, excise, employment and any other taxes imposed on the Gross Gross-Up Payment, any Excise Tax imposed on the Gross-Up Payment provided under this Section 4and any interest or penalties imposed with respect to income and employment taxes imposed on the Gross-Up Payment. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of in Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee Executive within fifteen (15) calendar days after the date on which Employee’s Executive's right to the Benefit a Payment is triggered (if requested at that time by the Company or by EmployeeExecutive) or such other time as requested by the Company or by EmployeeExecutive. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the Benefitapplication of the Reduced Amount, it shall furnish the Company and Employee Executive with an opinion reasonably acceptable to Employee Executive that no Excise Tax will be imposed with respect to such BenefitPayment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employee.the

Parachute Payments. In the event (a) If it is determined that the severance and other benefits provided for in this Agreement to Employee (the “Benefit”), determined without regard to any additional payment required under this section 4, Executive would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the a “Excise Parachute Tax”), as a result of the receipt of any payment or other event (collectively, a “Payment”), then Employee shall be entitled to receive from the Company will pay to Executive an additional payment or payments (the a “Gross-Up Payment”) in an amount sufficient equal to reimburse Employee for both the sum of (Ai) such Excise Tax, all taxes payable by Executive under Section 4999 of the Code applicable to the Payment and the Gross-Up Payment and (Bii) the incomeall federal, excise, state and local income and employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged payable by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses Executive with respect to the Gross-Up Payment. (b) All determinations required to be made under this Section 5, including whether a Parachute Tax is payable by Executive and the amount of such accounting Parachute Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by the nationally recognized firm of certified public accountants (the “Accounting Firm”) used by the Company as its auditors prior to the Sale of the Company (or, if such Accounting Firm declines to serve, the Accounting Firm shall be a nationally recognized firm of certified public accountants selected by the Company). For purposes of making the calculations required by this Section, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, provided that the Accounting Firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). The Accounting Firm shall be directed by the Company or Executive to submit its preliminary determination and detailed supporting calculations to both the Company and Executive within 15 calendar days after the determination date, if applicable, and any other such time or times as may be requested by the Company or Executive. If the Accounting Firm determines that any Parachute Tax is payable by Executive, the Company shall pay the required Gross-Up Payment to, or for the benefit of, Executive within five business days after receipt of such determination and calculations. If the Accounting Firm determines that no Parachute Tax is payable by Executive, it shall, at the same time as it makes such determination, furnish Executive with an opinion and supporting calculations that he has substantial authority not to report any Parachute Tax on his federal tax return. Any good faith determination by the Accounting Firm as to the amount of the Gross-Up Payment shall be binding upon the Company and Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce the Company’s obligation to provide any Gross-Up Payments that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Code Section 4999 at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Company should have been made (an “Underpayment”), consistent with the calculations required to be made hereunder. The accounting firm engaged In the event that the Company exhausts or fails to pursue its remedies pursuant to Section 5(f) hereof and Executive thereafter is required to make a payment of any Parachute Tax, Executive shall direct the determinations hereunder shall provide Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its calculations, together with determination and detailed supporting documentationcalculations to both the Company and Executive as promptly as possible. Any such Underpayment plus applicable interest and penalty taxes shall be promptly paid by the Company to, or for the benefit of, Executive within five business days after receipt of such determination and calculations. (c) The Company and Executive shall each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by Section 5(b) hereof. (d) The federal tax returns filed by Executive (or any filing made by a consolidated tax group which includes the Company) shall be prepared and filed on a basis consistent with the determination of the Accounting Firm with respect to the Parachute Tax payable by Executive. Executive shall make proper payment of the amount of any Parachute Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of the applicable sections of his federal income tax return as filed with the Internal Revenue Service, and such other documents reasonably requested by the Company, evidencing such payment. If prior to Employee the filing of Executive’s federal income tax return, the Accounting Firm determines in good faith that the amount of the Gross-Up Payment should be reduced, Executive shall within fifteen five business days pay to the Company the amount of such reduction. (15e) calendar The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section shall be borne by the Company. If such fees and expenses are initially advanced by Executive, the Company shall reimburse Executive the full amount of such fees and expenses within five business days after receipt from Executive of a statement therefor and reasonable evidence of his payment thereof. (f) In the event that the Internal Revenue Service claims that any payment or benefit received by Executive from the Company constitutes an “excess parachute payment” within the meaning of Code Section 280G(b)(1), Executive shall notify the Company in writing of such claim. Such notification shall be given as soon as practicable but not later than 10 business days after Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which Employee’s right such claim is requested to be paid. Executive shall not pay such claim prior to the Benefit is triggered (if requested at that time by expiration of the 30-day period following the date on which Executive gives such notice to the Company or by Employee) (or such other time as shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall (i) give the Company any information reasonably requested by the Company or by Employee. If relating to such claim; (ii) take such action in connection with contesting such claim as the accounting firm determines that no Excise Tax is payable Company shall reasonably request in writing from time to time, including without limitation, accepting legal representation with respect to the Benefit, it shall furnish such claim by an attorney reasonably selected by the Company and Employee reasonably satisfactory to Executive; (iii) cooperate with the Company in good faith in order to effectively contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including, but not limited to, additional interest and penalties and related legal, consulting or other similar fees) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an opinion reasonably acceptable after-tax basis, for and against for any Parachute Tax or income tax or other tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (g) The Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to Employee pay the tax claimed and xxx for a refund or contest the claim in any permissible manner and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that no Excise if the Company directs Executive to pay such claim and xxx for a refund or otherwise contest such claim, the Company shall advance the amount of such payment together with any reasonable legal fees or other expenses incurred by Executive in connection with such request to Executive on an interest-free basis, and shall indemnify and hold Executive harmless, on an after tax basis, from any Parachute Tax will be (or other tax including interest and penalties with respect thereto) imposed with respect to such Benefitadvance or with respect to any imputed income with respect to such advance; and provided, further, that if Executive is required to extend the statue of limitations to enable the Company to contest such claim, Executive may limit this extension solely to such contested amount. Any good faith determinations The Company’s control of the accounting firm made hereunder contest shall be finallimited to issues with respect to which a corporate deduction would be disallowed pursuant to Code Section 280G and Executive shall be entitled to settle or contest, binding and conclusive upon as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. In addition, no position may be taken nor any final resolution be agreed to by the Company without Executive’s consent if such position or resolution could reasonably be expected to adversely affect Executive unrelated to matters covered hereto. (h) If, after the receipt by Executive of an amount advanced by the Company in connection with the contest of the Parachute Tax claim, Executive receives any refund with respect to such claim, Executive shall promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto); provided, however, if the amount of that refund exceeds the amount advanced by the Company Executive may retain such excess. If, after the receipt by Executive of an amount advanced by the Company in connection with a Parachute Tax claim, a determination is made that Executive shall not be entitled to any refund with respect to such claim and Employeethe Company does not notify Executive in writing of its intent to contest the denial of such refund prior to the expiration of 30 days after such determination such advance shall be deemed to be in consideration for services rendered after the date of Executive’s termination.

Parachute Payments. In As soon as practicable following the event date hereof, the Company will (to the extent the requisite waivers described below are obtained) seek the approval by such number of stockholders of the Company as is required by the terms of Code Section 280G(b)(5)(B) so as to render the parachute payment provisions of Code Section 280G inapplicable to any and all accelerated vesting, payments, benefits, options, and/or stock provided pursuant to agreements, contracts, or arrangements that might otherwise result from the severance Merger or the other transactions contemplated by this Agreement, separately or in the aggregate, in the payment of any amount and/or the provision of any benefit that would not be deductible by reason of Code Section 280G, with such stockholder vote to be obtained in a manner that satisfies all applicable requirements of the DGCL and other benefits provided for in this Agreement to Employee of Code Section 280G(b)(5)(B) and the Treasury Regulations promulgated thereunder (the “Benefit280G Stockholder Vote”). In connection therewith, determined without regard the Company shall take commercially reasonable efforts to any additional obtain and deliver to Parent, prior to the initiation of the 280G Stockholder Vote, a parachute payment required under this section 4, would waiver agreement from each Person whom the Company reasonably believes is a “disqualified individual” (i) constitute “parachute payments” within the meaning of Code Section 280G(c) and the Treasury Regulations promulgated thereunder), as determined immediately prior to the 280G of the Internal Revenue Code of 1986, as amended (the “Code”)Stockholder Vote, and (ii) who might otherwise have, receive or have the right or entitlement to receive any payments or benefits from the Merger or the other transactions contemplated by this Agreement that would be subject to treatment as parachute payments within the excise tax imposed by meaning of Code Section 4999 280G. Pursuant to such parachute payment waiver agreements, each such Person shall agree to waive any and all right or entitlement to receive payments or benefits to the extent the value thereof would result in the payments or benefits, separately or in the aggregate, being treated as a “parachute payment” (as defined in Section 280G(b)(2)(A) of the Code or any interest or penalties payable 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”Code), then Employee shall be entitled to receive from unless the Company an additional payment (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) requisite stockholder approval of such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the day prior payments or benefits is obtained pursuant to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employee280G Stockholder Vote.

Parachute Payments. In Notwithstanding anything to the contrary herein or in any Benefit Plan, in the event it shall be determined that any monetary amounts or benefits due or payable by the severance and other benefits provided for in this Agreement Company to Employee Executive (the “Benefit”)whether paid or payable, determined without regard or due or distributed) are or will become subject to any additional payment required excise tax under this section 4, would (i) constitute “parachute payments” within the meaning of Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (collectively “Excise Taxes”), and (ii) then the amounts or benefits otherwise due or payable to Executive pursuant to this Agreement or any Benefit Plans shall be reduced to the extent necessary so that no portion of such amounts or benefits shall be subject to the Excise Taxes, but only if (i) the net amount of such amounts and benefits, as so reduced (and after the imposition of the total amount of taxes under federal, state and local law on such amounts and benefits), is greater than (ii) the excess of (A) the net amount of such amounts and benefits, without reduction (but after imposition of the total amount of taxes under federal, state and local law) over (B) the amount of Excise Taxes to which Executive would be subject on such unreduced amounts and benefits. If it is determined that Excise Taxes will or might be imposed on Executive in the absence of such reduction, the Company and Executive shall make good faith efforts to seek to identify and pursue reasonable action to avoid or reduce the amount of Excise Taxes, provided, however, that this sentence shall not be construed to require Executive to accept any further reduction in the amount or benefits that would be payable to him in the absence of this sentence. The provisions of this Section 11(d) shall override and control any inconsistent provision in the Xxxxxx Products, Inc. Long-Term Capital Accumulation Plan. All determinations required to be made under this Section 11(d), including whether reduction is required, the amount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made in good faith by an independent accounting firm selected by the Company in accordance with applicable law (the “Accounting Firm”), in consultation with tax counsel reasonably acceptable to Executive. In the event that such Accounting Firm is serving as accountant or auditor for the individual, entity or group acting as the acquirer in a Change in Control, the Company shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to herein as the Accounting Firm). All fees and expenses of the Accounting Firm shall be borne solely by the Company. If the Accounting Firm determines that no excise tax imposed by under Section 4999 of the Code or any interest or penalties is payable by Executive, the Company shall request that the Accounting Firm furnish Executive with respect written guidance that failure to report such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as on Executive’s applicable federal income tax return would not result in the “Excise Tax”), then Employee shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as imposition of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company a negligence or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeesimilar penalty.

Parachute Payments. In the event that the severance and other benefits provided for in If any payment or benefit you would receive under this Agreement to Employee (the “Benefit”), determined without regard to any additional payment required under this section 4, "Payment") would (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended amended, (the “"Code”"), or any comparable successor provision, and (ii) but for this section would be subject to the excise tax imposed by Section 4999 of the Code Code, or any interest or penalties payable with respect to such excise tax comparable successor provision (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then Employee Executive's benefits hereunder shall be entitled either (i) provided to receive from you in full, or (ii) provided to you as to such lesser extent which would result in no portion of such benefits being subject to the Company an additional payment (Excise Tax, 2 whichever of the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and (B) the income, excise, employment and any other taxes imposed applicable taxes, results in the receipt by you, on an after-tax basis, of the Gross Up Payment provided greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax. Unless you and the Company otherwise agree in writing, any determination required under this Section 4. The accounting firm engaged section shall be made in writing in good faith by a qualified third party (the "Professional Service Firm") selected by the Company for general audit Company. In the event of a reduction of benefits hereunder, benefits payable in cash shall be reduced first. For purposes as of making the calculations required by this section, the Professional Service Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the day prior Code, and other applicable legal authority. You and the Company shall furnish to the effective date of Professional Service Firm such information and documents as the Change of Control shall perform the foregoing calculationsProfessional Service Firm may reasonably request in order to make a determination under this section. The Company shall bear all expenses costs the Professional Service Firm may reasonably incur in connection with any calculations contemplated by this section. If, notwithstanding any reduction described in this section, the IRS determines that you are liable for the Excise Tax as a result of the receipt of the payment of benefits as described above, then you shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that you challenge the final IRS determination, a final judicial determination, a portion of the payment equal to the "Repayment Amount." The Repayment Amount with respect to the determinations by payment of benefits shall be the smallest such accounting firm amount, if any, as shall be required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, paid to the Company and so that your net after-tax proceeds with respect to Employee within fifteen any payment of benefits (15) calendar days after taking into account the date on which Employee’s right to payment of the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable and all other applicable taxes imposed on such payment) shall be maximized. The Repayment Amount with respect to the Benefit, it payment of benefits shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed zero if a Repayment Amount of more than zero would not result in your net after-tax proceeds with respect to the payment of such Benefitbenefits being maximized. Any good faith determinations If the Excise Tax is not eliminated pursuant to this paragraph, you shall pay the Excise Tax. Notwithstanding any other provision of this Parachute Payments Section, if (i) there is a reduction in the payment of benefits as described in this section, (ii) the IRS later determines that you are liable for the Excise Tax, the payment of which would result in the maximization of your net after-tax proceeds (calculated as if your benefits had not previously been reduced), and (iii) you pay the Excise Tax, then the Company shall pay to you those benefits which were reduced pursuant to this section contemporaneously or as soon as administratively possible after you pay the Excise Tax so that your net after-tax proceeds with respect to the payment of benefits is maximized. Except as provided herein, the terms of the accounting firm made hereunder shall be final, binding Employment Agreement remain in full force and conclusive upon the Company and Employeeeffect.

Parachute Payments. In the event that the severance and other benefits provided for Anything in this Agreement to Employee the contrary notwithstanding, if any payment or benefit the Executive would receive from the Company pursuant to this Agreement or otherwise (the “Benefit”), determined without regard to any additional payment required under this section 4, "Payment") would (i) constitute “a "parachute payments” payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”"), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee such Payment shall be entitled equal to receive from the Company an additional Reduced Amount. The "Reduced Amount" shall be either (1) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (2) the Payment or a portion thereof after payment (of the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such applicable Excise Tax, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (B) all computed at the incomehighest applicable marginal rate), exciseresults in the Executive's receipt, employment and any other taxes imposed on an after-tax basis, of the Gross Up greatest amount of the Payment. If a reduction in payments or benefits constituting "parachute payments" is necessary so that the Payment provided under this Section 4equals the Reduced Amount, reduction shall occur in the order of payments the Executive elects in writing, provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the Payment occurs. The Company's principal outside accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear will make all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder and shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee the Executive within fifteen (15) calendar days after the date on which Employee’s the Executive's right to the Benefit a Payment is triggered (if requested at that time by the Company or by EmployeeExecutive) or such other time as requested by the Company or by Employeethe Executive. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the Benefitapplication of the Reduced Amount, it shall furnish the Company and Employee the Executive with an opinion reasonably acceptable to Employee the Executive that no Excise Tax will be imposed with respect to such BenefitPayment. Any good faith determinations of The Company shall be entitled to rely upon the accounting firm made hereunder firm's determinations, which shall be final, final and binding and conclusive upon the Company and Employeeon all persons.

Parachute Payments. (a) In the event that any payment or distribution by the severance and other benefits provided Company to or for in the benefit of the Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement to Employee (the “Benefit”)or otherwise, but determined without regard to any additional payment required payments under this section 4, would Section 15(a)) (ia "PAYMENT") constitute “parachute payments” within is determined to be subject to the meaning of excise tax imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”"CODE"), and (ii) be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable are incurred by the Employee 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”"EXCISE TAX"), then Employee shall be entitled to receive from the Company shall pay to the Employee an additional payment (a "GROSS-UP PAYMENT") in an amount such that after payment by the “Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment”) in , the Employee retains an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (B) of the income, excise, employment and any other taxes imposed on the Gross Gross-Up Payment provided equal to the Excise Tax imposed upon the Payments. (b) Subject to the provisions of Section 15(c), all determinations required to be made under this Section 4. The 15, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm engaged which is satisfactory to the Company (the "Accounting Firm"), which shall provide detailed supporting calculations both to the Company and the Employee within 15 business days after such determinations are requested by the Employee or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 15(b), shall be paid by the Company for general audit purposes as to the Employee within five days after the Company's receipt of the day prior to the effective date Accounting Firm's determination. As a result of the Change uncertainty in the application of Control shall perform Section 4999 of the foregoing calculations. The Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company shall bear all expenses should have been made ("UNDERPAYMENT"), consistent with respect to the determinations by such accounting firm calculations required to be made hereunder. The accounting firm engaged In the event that the Company exhausts its remedies pursuant to Section 15(c) and the Employee thereafter is required to make a payment of any Excise Tax, the determinations hereunder Accounting Firm shall provide its calculations, together with detailed supporting documentation, to determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company and to or for the benefit of the Employee. (c) The Employee within fifteen (15) calendar shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Employee is informed in writing of such claim and shall apprise the Company of the nature of such claim, and the date on which Employee’s right such claim is requested to be paid. The Employee shall not pay such claim prior to the Benefit is triggered (if requested at that time by expiration of the 30-day period following the date on which it gives such notice to the Company or by Employee) (or such other time as shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Employee in writing prior to the expiration of such period that it desires to contest such claim, the Employee shall: (i) give the Company any information reasonably requested by the Company or by Employee. If relating to such claim, (ii) take such action in connection with contesting such claim as the accounting firm determines that no Excise Tax is payable Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Benefit, it shall furnish Company, (iii) cooperate with the Company in good faith in order to contest such claim effectively, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Employee with harmless, on an opinion reasonably acceptable to Employee that no after-tax basis, for any Excise Tax will be or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 15(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Employee to pay the tax claimed and sue for a refund or contest the claim in anx xermissible manner, and the Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Employee to pay such claim and sue for a refund, the Company shall advance xxe amount of such payment to the Employee, on an interest-free basis and shall indemnify and hold the Employee harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such Benefit. Any good faith determinations advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the accounting firm made hereunder statute of limitations relating to payment of taxes for the taxable year of the Employee with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be finallimited to issues with respect to which a Gross-Up 14 Payment would be payable hereunder and the Employee shall be entitled to settle or contest, binding and conclusive upon as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by the Employee of an amount advanced by the Company pursuant to Section 15(c) the Employee becomes entitled to receive any refund with respect to such claim, or if the actual amount of the Excise Tax is less than the amount of the Gross-Up Payment, the Employee shall (subject to the Company's complying with the requirements of Section 15(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto) or the amount of such difference. If, after the receipt by the Employee of an amount advanced by the Company pursuant to Section 15(c), a determination is made that the Employee shall not be entitled to any refund with respect to such claim and Employeethe Company does not notify the Employee in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Parachute Payments. In (a) It is the event that the severance and other benefits provided for in objective of this Agreement to Employee (the “Benefit”), determined without regard to any additional payment required maximize Executive’s net after-tax benefit if payments or benefits provided under this section 4, would (i) constitute “parachute payments” within the meaning of Agreement are subject to excise tax under Section 280G 4999 of the Internal Revenue Code of 1986, as amended amended, and the regulations and guidance promulgated thereunder (the “Code”). Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit by the Company or otherwise to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (all such payments and (iibenefits, including the payments under Section 4(b) hereof, being hereinafter referred to as the “Total Payments”), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee the Total Payments shall be entitled reduced to receive from the Company an additional payment (extent necessary so that no portion of the “Gross-Up Payment”) in an amount sufficient Total Payments shall be subject to reimburse Employee for both (A) such the Excise Tax, and but only if (Bi) the incomenet amount of such Total Payments, exciseas so reduced (and after subtracting the net amount of federal, state and local income and employment taxes on such reduced Total Payments and any other after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes imposed on such Total Payments and the Gross Up Payment provided under this Section 4. amount of the Excise Tax to which Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). (b) The accounting firm engaged Total Payments shall be reduced by the Company for general audit purposes as in the following order: (i) reduction of any cash severance payments otherwise payable to Executive that are exempt from Section 409A of the day prior Code (“Section 409A”), (ii) reduction of any other cash payments or benefits otherwise payable to Executive that are exempt from Section 409A, but excluding any payments attributable to the effective date acceleration of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses vesting or payments with respect to any equity award with respect to the determinations by such accounting firm required Company’s common stock that is exempt from Section 409A, (iii) reduction of any other payments or benefits otherwise payable to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date Executive on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) a pro-rata basis or such other time as requested by manner that complies with Section 409A, but excluding any payments attributable to the Company or by Employee. If the accounting firm determines that no Excise Tax is payable acceleration of vesting and payments with respect to any equity award with respect to the BenefitCompany’s common stock that are exempt from Section 409A, it shall furnish and (iv) reduction of any payments attributable to the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed acceleration of vesting or payments with respect to such Benefit. Any any other equity award with respect to the Company’s common stock that are exempt from Section 409A. (c) All determinations regarding the application of this Section 5 shall be made by an accounting firm with experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax reasonably selected by the Company in good faith determinations (“Independent Advisors”), a copy of which report and all worksheets and background materials relating thereto shall be provided to Executive. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the accounting firm made hereunder Total Payments the receipt or enjoyment of which Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be finaltaken into account; (ii) no portion of the Total Payments shall be taken into account which, binding in the opinion of the Independent Advisors, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and conclusive upon (iii) the Company value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and Employee(4) of the Code. The costs of obtaining such determination and all related fees and expenses (including related fees and expenses incurred in any later audit) shall be borne solely by the Company.

Parachute Payments. In (a) If it is determined (as hereafter provided) that any payment, compensation or other benefit provided by the event that Company (or any successor entity) to or for the severance and other benefits provided for in benefit of Executive under this Agreement to Employee or any other plan, agreement or arrangement (the “BenefitPayments”), determined without regard to any additional payment required under this section 4, ) would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Code Section 4999 of the Code or any interest or penalties payable with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the a “Excise Parachute Tax”), or any tax, interest, penalty or other expense incurred by Executive pursuant to Code Section 409A (a “Deferred Compensation Tax”) to which Executive would not have been subject but for the Company’s failure to pay any severance amounts pursuant to the provisions of Section 3 and Section 4 of this Agreement or other failure to make such payments in a manner that avoids such payments qualifying as deferred compensation under Section 409A of the Code (collectively, a “Payment”), then Employee Executive shall be entitled to receive from the Company an additional payment or payments (the a “Gross-Up Payment”) in an amount sufficient such that, after payment by Executive of all taxes (including any Parachute Tax or Deferred Compensation Tax) imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to reimburse Employee for the Parachute Tax or Deferred Compensation Tax imposed upon the Payment. (b) Subject to the provisions of Section 5(a) hereof, all determinations required to be made under this Section 5, including whether a Parachute Tax or Deferred Compensation Tax is payable by Executive with regard to a Payment and the amount of such Parachute Tax or Deferred Compensation Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by the nationally recognized firm of certified public accountants (the “Accounting Firm”) used by the Company prior to the Change in Control (or, if such Accounting Firm declines to serve, the Accounting Firm shall be a nationally recognized firm of certified public accountants selected by the Company). For purposes of making the calculations required by this Section, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G, 4999 and 409A of the Code, provided that the Accounting Firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). The Accounting Firm shall be directed by the Company or Executive to submit its preliminary determination and detailed supporting calculations to both (A) such Excise Taxthe Company and Executive within 15 calendar days after the determination date, and (B) the incomeif applicable, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged such time or times as may be requested by the Company or Executive. If the Accounting Firm determines that any Parachute Tax or Deferred Compensation Tax is payable by Executive with regard to a Payment, the Company shall pay the required Gross-Up Payment to, or for general audit purposes the benefit of, Executive within five business days after receipt of such determination and calculations. If the Accounting Firm determines that no Parachute Tax or Deferred Compensation Tax is payable by Executive with regard to a Payment, it shall, at the same time as it makes such determination, furnish Executive with an opinion that he has substantial authority not to report any Parachute Tax or Deferred Compensation Tax on his federal tax return. Any good faith determination by the Accounting Firm as to whether a Gross-Up Payment is to be made with regard to a Payment and the amount of the day prior Gross-Up Payment shall be binding upon the Company and Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce the Company’s obligation to the effective date provide any Gross-Up Payments that shall be due as a result of such contrary determination. As a result of the Change uncertainty in the application of Control shall perform Code Section 4999 or Code Section 409A at the foregoing calculations. The time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Company shall bear all expenses should have been made (an “Underpayment”), consistent with respect to the determinations by such accounting firm calculations required to be made hereunder. The accounting firm engaged In the event that the Company exhausts or fails to pursue its remedies pursuant to Section 5(f) hereof and Executive thereafter is required to make a payment of any Parachute Tax or Deferred Compensation Tax, Executive shall direct the determinations hereunder shall provide Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its calculations, together with determination and detailed supporting documentationcalculations to both the Company and Executive as promptly as possible. Any such Underpayment shall be promptly paid by the Company to, or for the benefit of, Executive within five business days after receipt of such determination and calculations. (c) The Company and Executive shall each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by Section 5(b) hereof. (d) The federal tax returns filed by Executive (or any filing made by a consolidated tax group which includes the Company) shall be prepared and filed on a basis consistent with the determination of the Accounting Firm with respect to the Parachute Tax or Deferred Compensation Tax payable by Executive. Executive shall make proper payment of the amount of any Parachute Tax or Deferred Compensation Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of his federal income tax return as filed with the Internal Revenue Service, and such other documents reasonably requested by the Company, evidencing such payment. If prior to Employee the filing of Executive’s federal income tax return, the Accounting Firm determines in good faith that the amount of the Gross-Up Payment should be reduced, Executive shall within fifteen five business days pay to the Company the amount of such reduction. (15e) calendar The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by Sections 5(b) and (d) hereof shall be borne by the Company. If such fees and expenses are initially advanced by Executive, the Company shall reimburse Executive the full amount of such fees and expenses within five business days after receipt from Executive of a statement therefor and reasonable evidence of his payment thereof. (f) In the event that the Internal Revenue Service claims that any payment or benefit received under this Agreement constitutes an “excess parachute payment” within the meaning of Code Section 280G(b)(1), Executive shall notify the Company in writing of such claim. Such notification shall be given as soon as practicable but not later than 10 business days after Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which Employee’s right such claim is requested to be paid. Executive shall not pay such claim prior to the Benefit is triggered (if requested at that time by expiration of the 30 day period following the date on which Executive gives such notice to the Company or by Employee) (or such other time as shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall (i) give the Company any information reasonably requested by the Company or by Employee. If relating to such claim; (ii) take such action in connection with contesting such claim as the accounting firm determines that no Excise Tax is payable Company shall reasonably request in writing from time to time, including without limitation, accepting legal representation with respect to the Benefit, it shall furnish such claim by an attorney reasonably selected by the Company and Employee reasonably satisfactory to Executive; (iii) cooperate with the Company in good faith in order to effectively contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including, but not limited to, additional interest and penalties and related legal, consulting or other similar fees) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an opinion reasonably acceptable after-tax basis, for and against for any Parachute Tax or income tax or other tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (g) The Company shall direct Executive with regard to Employee all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and sxx for a refund or contest the claim in any permissible manner and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that no Excise if the Company directs Executive to pay such claim and sxx for a refund, the Company shall advance the amount of such payment to Executive on an interest-free basis (to the extent permitted by applicable law), and shall indemnify and hold Executive harmless, on an after tax basis, from any Parachute Tax will be or Deferred Compensation Tax (or other tax including interest and penalties with respect thereto) imposed with respect to such Benefitadvance or with respect to any imputed income with respect to such advance; and provided, further, that if Executive is required to extend the statue of limitations to enable the Company to contest such claim, Executive may limit this extension solely to such contested amount. Any good faith determinations The Company’s right to direct Executive with regard to the contest shall be limited to issues with respect to whether and the extent to which a payment or benefit is an “excess parachute payment” pursuant to Code Section 280G(b)(1), the imposition of the accounting firm made hereunder Parachute Tax under Code Section 4999 and the imposition of the Deferred Compensation Tax under Code Section 409A, and Executive shall be finalentitled to settle or contest, binding and conclusive upon as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. In addition, the Company shall not direct Executive to take a position or agree to any final resolution if such position or resolution could reasonably be expected to adversely affect Executive unrelated to matters covered hereto, unless Executive consents in writing to such position or agreement. (h) If, after the receipt by Executive of an amount advanced by the Company in connection with the contest of the Parachute Tax or Deferred Compensation Tax claim, Executive receives any refund with respect to such claim, Executive shall promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto); provided, however, if the amount of that refund exceeds the amount advanced by the Company Executive may retain such excess. If, after the receipt by Executive of an amount advanced by the Company in connection with a Parachute Tax or Deferred Compensation Tax claim, a determination is made that Executive shall not be entitled to any refund with respect to such claim and Employeethe Company does not notify Executive in writing of its intent to direct Executive to contest the denial of such refund prior to the expiration of 30 days after such determination such advance shall be deemed to be in consideration for services rendered after the Termination Date.

Parachute Payments. In (a) Grantee shall bear all expense of, and be solely responsible for, any excise tax imposed by Section 4999 of the event that the severance and other benefits provided for in this Agreement to Employee Code (the “BenefitExcise Tax”); provided, determined without regard however, that any payment or benefit received or to be received by Grantee (whether payable under the terms of this Agreement or any additional payment required other plan, arrangement or agreement with the Company or any of its affiliates) (collectively, the “Payments”) that would constitute a “parachute payment” within the meaning of Section 280G of the Code, shall be reduced to the extent necessary so that no portion thereof shall be subject to the Excise Tax but only if, by reason of such reduction, the net after-tax benefit received by Grantee exceeds the net after-tax benefit that would be received by Grantee if no such reduction was made. If a reduction in payments or benefits constituting “parachute payments” is necessary under this section 4the preceding sentence, would the reduction shall be made in the manner that results in the greatest economic benefit for Grantee. (b) The “net after-tax benefit” shall mean (i) the Payments that Grantee receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”), and less (ii) be subject to the excise tax imposed amount of all federal, state and local income and employment taxes payable by Section 4999 of the Code or any interest or penalties payable Grantee with respect to the foregoing calculated at the highest marginal income tax rate for each year in which the foregoing shall be paid to Grantee (based on the rate in effect for such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to year as set forth in the “Excise Tax”Code as in effect at the time of the first payment of the foregoing), then Employee shall be entitled to receive from the Company an additional payment less (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (Biii) the income, excise, employment amount of Excise Tax imposed with respect to the payments and any other taxes imposed on the Gross Up Payment provided under this benefits described in Section 4. 25(a) above. (c) The independent registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change event described in Section 280G(b)(2)(A)(i) of Control the Code shall perform the foregoing calculations. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting such change in control, change of ownership or similar transaction, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. . (d) The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee Grantee within fifteen thirty (1530) calendar days after the date on which EmployeeXxxxxxx’s right to the Benefit a Payment is triggered (if requested at that time by the Company or by EmployeeGrantee) or such other time as reasonably requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such BenefitGrantee. Any good faith determinations of the independent registered public accounting firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeGrantee.

Parachute Payments. In the event (a) If it shall be determined that the severance and other benefits provided for in any payment, distribution or benefit received or to be received by Employee from BTFHC pursuant to this Agreement or any option plan maintained by Employer or its affiliates (other than with respect to Employee that certain Restricted Stock Award Agreement dated September 15, 1998) ("Payments") would be subject to the “Benefit”), determined without regard to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of excise tax imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”), and (ii") be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively tax referred to as the “"Excise Tax”"), then Employee shall be entitled to receive from the Company an additional payment from BTFHC (the “"Excise Tax Gross-Up Payment”") in an amount sufficient to reimburse such that the net amount retained by Employee, after the calculation and deduction of any Excise Tax on the Payments (together with any penalties and interest that have been or will be imposed on Employee for both (Ain connection therewith) such Excise Tax, and (B) the income, excise, employment and any other federal, state and local income taxes, Excise Taxes and payroll taxes (including the tax imposed by Section 3101(b) of the Code) on the Gross Excise Tax Gross-Up Payment provided for in this paragraph 10, shall be equal to the Payments. In computing the amount of this payment, it shall be assumed that Employee is subject to tax by each taxing jurisdiction at the highest marginal tax rate in the respective taxing jurisdiction of Employee, taking into account the city and state in which Employee resides, but giving effect to the tax benefit, if any, which Employee may enjoy to the extent that any such tax is deductible in determining the tax liability of any other taxing jurisdiction (provided that the highest marginal tax rate for federal income tax purposes shall be determined under this Section 4. The accounting firm engaged by the Company for general audit purposes as 1 of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the Code). (b) All determinations by such accounting firm required to be made hereunderunder this paragraph 10, 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 subparagraph 10(a), shall be made by BTFHC's independent auditors (the "Accounting Firm"), which shall provide detailed supporting calculations both to BTFHC and Employee within 15 business days after BTFHC makes any Payments to Employee. The determination of tax liability and the assumptions made by the Accounting Firm shall be subject to review by Employee's tax advisor, and, if Employee's tax advisor does not agree with the determination reached by the Accounting Firm, then the Accounting Firm and Employee's tax advisor shall jointly designate a nationally-recognized public accounting firm engaged within five (5) business days after notice has been given to BTFHC of Employee's disagreement with the Accounting Firm's calculation, which shall make the determinations hereunder determination within 15 business days after its appointment. If the parties cannot agree on a nationally recognized public accounting firm, then both parties shall provide select a nationally recognized public accounting firm who shall then jointly select a third nationally recognized public accounting firm which shall make the determination within 15 business days after its calculationsappointment. All fees and expenses of the accountants and tax advisors retained by either Employee or BTFHC shall be borne by BTFHC. Any Excise Tax Gross-Up Payment, together with detailed supporting documentationas determined pursuant to this paragraph 10, to the Company and shall be paid by BTFHC to Employee within fifteen five (155) calendar days after the date receipt of the determination, subject to applicable federal, state, local and Excise Tax withholding requirements. Any determination by a jointly designated public accounting firm shall be binding upon BTFHC and Employee, and shall not be subject to arbitration pursuant to Section 18. (c) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination hereunder, it is possible that Excise Tax Gross-Up Payments will not have been made by BTFHC that should have been made consistent with the calculations required to be made hereunder ("Underpayment"). In the event that the IRS, on which Employee’s right audit, asserts that Employee has made an underpayment and Employee is required (by reason of settlement or otherwise) to make a payment of any Excise Tax, or if Employee is required to make one or more payments of Excise Tax to the Benefit is triggered IRS (if requested at that time and/or interest or penalties thereon) upon the filing of his original or amended tax returns which exceed the amounts taken into account in determining the initial Excise Tax Gross-Up Payment made pursuant to subparagraphs 10(a) and 10(b), then in either of such events any such Under payment calculated in accordance with and in the same manner as the Excise Tax Gross-Up Payment in subparagraph 10(a) shall be promptly paid by BTFHC to or for the Company or by Employee) or such other time as requested by the Company or by benefit of Employee. If In addition, BTFHC will pay Employee an amount equal to any penalties, interest or additions to be assessed against him as a result of the accounting firm determines that no underpayment, which amounts shall be grossed up for any federal, state, local or Excise Tax is Taxes payable with respect to such penalties, interest or additions to tax such that Employee receives a net amount equal to the Benefitpenalties, it interest and additions to tax assessed against him (determined in the same manner as described in subparagraph 10(a)). Employee shall furnish not be obligated to contest any proposed assessment of any Underpayment and may settle any such audit action or proceeding involving an Underpayment at his discretion; provided, however, that Employee shall, upon notice of examination by the Company Internal Revenue Service, give notice thereof to BTFHC and BTFHC, at its sole cost and in its sole discretion, may, on behalf of Employee, defend and contest against any proposed Internal Revenue Service deficiency. In the event that BTFHC assumes the defense of the proposed deficiency, BTFHC shall immediately, upon written request of the Employee, secure all of its possible obligations to the Employee as provided for in this subparagraph 10(c) by either posting cash collateral in escrow or providing Employee with a "clean irrevocable letter of credit" in the amount of all of BTFHC's possible obligations to the Employee pursuant to this subparagraph 10(c). The terms of such escrow or clean irrevocable letter of credit shall be negotiated by BTFHC and Employee with at such time and any dispute relating to such matters shall be settled in an opinion reasonably acceptable arbitration pursuant to Section 18 of this Agreement. Employee agrees to execute any documents, including Powers of Attorney, that may be necessary to facilitate BTFHC's defense and/or contesting the Internal Revenue Service's assertions. In the event that the Excise Tax Gross-Up Payment exceeds the amount subsequently determined to be due, such excess shall constitute a loan from BTFHC to Employee that no Excise Tax will be imposed payable on the fifth day after demand by BTFHC (together with respect to such Benefit. Any good faith determinations interest at the rate provided in Section 1274(b)(2)(B) of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeCode).

Parachute Payments. In the event that any of the severance payments and other benefits provided for in by this Agreement or otherwise payable to Employee Executive (the “Benefit”), determined without regard to any additional payment required under this section 4, would (ia) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (iib) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee Executive’s severance payments and benefits under this Agreement or otherwise shall be entitled payable either in full or in such lesser amount which would result in no portion of such severance payments or benefits being subject to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the Excise Tax, results in the receipt by Executive, on an after-tax basis, of the greatest amount of severance payments and benefits under this Agreement or otherwise, notwithstanding that all or some portion of such severance payments or benefits may be taxable under Section 4999 of the Code. Any reduction in the severance payments and benefits required by this Section shall be made in the following order: (i) reduction of cash payments; (ii) reduction of accelerated vesting of equity awards other than stock options; (iii) reduction of accelerated vesting of stock options; and (Biv) the income, excise, employment and any reduction of other taxes imposed on the Gross Up Payment benefits paid or provided under this Section 4to Executive. The accounting calculations in Section 4 will be performed by the professional firm engaged by the Company for general audit tax purposes as of the day prior to the effective date of the Change of Control event that might reasonably be anticipated to result in severance payments and benefits that would otherwise be subject to the Excise Tax. If the tax firm so engaged by the Company is serving as accountant or auditor for the acquiring company, the Company shall perform appoint a nationally recognized tax firm to make the foregoing calculationsdeterminations required by this Section. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunderby this Section 4. The accounting Company and Executive shall furnish such tax firm engaged such information and documents as the tax firm may reasonably request in order to make the determinations hereunder shall its required determination. The tax firm will provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time Executive as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefitsoon as practicable following its engagement. Any good faith determinations of the accounting tax firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeExecutive. However, the Executive shall have the final authority to make any good faith determination(s) associated with the assumptions used by the tax firm in providing its calculations, and such good faith determination by the Executive shall be binding on the Company. As a result of the uncertainty in the application of Sections 409A, 280G or 4999 of the Code at the time of the initial determination by the professional tax firm described in this Section 4, it is possible that the Internal Revenue Service (the “IRS”) or other agency will claim that an Excise Tax greater than that amount, if any, determined by such professional firm for the purposes of Section 4 is due (the “Additional Excise Tax”). Executive shall notify the Company in writing of any claim by the IRS or other agency that, if successful, would require payment of Additional Excise Tax. 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 payments made or due to Executive. The Company shall pay all reasonable fees, expenses and penalties of Executive relating to a claim by the IRS or other agency. In the event it is finally determined that a further reduction would have been required under Section 4 to place Executive in a better after-tax position, Executive shall repay the Company such amount within 30 days thereof in order to effect such result.

Parachute Payments. In the event 11.1 If it is determined (as hereafter provided) that the severance and other benefits provided for in this Agreement to Employee (the “Benefit”), determined without regard to any additional payment required under this section 4, Executive would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Code Section 4999 to which Executive would not have been subject but for any payment or stock option or restricted stock vesting (collectively a “Payment”) occurring pursuant to the terms of this Agreement or otherwise as in connection with a change in the ownership or effective control of Employer or a change in the ownership of a substantial portion of the assets of the Employer within the meaning of Code or any interest or penalties payable with respect to such excise tax Section 280G(b)(2)(A)(i) (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the a “Excise Parachute Tax”), then Employee Executive shall be entitled to receive from the Company an additional payment or payments (the a “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both such that, after payment by Executive of all taxes (Aincluding any Parachute Tax) such Excise Taximposed upon the Gross-Up Payment, and (B) Executive retains an amount of the income, excise, employment and any other taxes imposed on the Gross Gross-Up Payment provided under equal to the Parachute Tax imposed upon the Payment (and taxes on such additional payments pursuant to this Section 411). The accounting firm engaged by Gross-up Payment shall be made no later than the Company for general audit purposes as last day of Executive’s taxable year following the taxable year in which Executive remits any taxes under Section 4999 of the day prior Code to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect Internal Revenue Service. 11.2 Subject to the provisions of Section 11.1 hereof, all determinations by such accounting firm required to be made hereunderunder this Section 11 , including whether a Parachute Tax is payable by Executive and the amount of such Parachute Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by the nationally recognized firm of certified public accountants (the “Accounting Firm”) used by the Company prior to the Change in Control (or, if such Accounting Firm declines to serve, the Accounting Firm shall be a nationally recognized firm of certified public accountants selected by the Company). For purposes of making the calculations required by this Section, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, provided that the Accounting Firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). The accounting firm engaged Accounting Firm shall be directed by the Company or Executive to make the determinations hereunder shall provide submit its calculations, together with preliminary determination and detailed supporting documentation, calculations to both the Company and to Employee Executive within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (determination date, if requested at that applicable, and any other such time by the Company or by Employee) or such other time times as may be requested by the Company or by EmployeeExecutive. If the accounting firm Accounting Firm determines that any Parachute Tax is payable by Executive, the Company shall pay the required Gross-Up Payment to, or for the benefit of, Executive within five business days after receipt of such determination and calculations and in any event by no later than the last day of the taxable year of the Executive following the taxable year in which the related taxes must be remitted to the relevant taxing authorities. If the Accounting Firm determines that no Excise Parachute Tax is payable by Executive, it shall, at the same time as it makes such determination, furnish Executive with an opinion that he has substantial authority not to report any Parachute Tax on his federal tax return. Any good faith determination by the Accounting Firm as to the amount of the Gross-Up Payment shall be binding upon the Company and Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided , however , that no such determination shall eliminate or reduce the Company’s obligation to provide any Gross-Up Payments that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Code Section 4999 at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Company should have been made (an “Underpayment”), consistent with the calculations required to be made hereunder. In the event of a final determination by the Internal Revenue Service that an Underpayment has occurred, Executive shall direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Company and Executive as promptly as possible. Any such Underpayment shall be promptly paid by the Company to, or for the benefit of, Executive within five business days after receipt of such determination and calculations. Provided, however, that in no event shall any Underpayment be made later than the last day of the taxable year of the Executive following the taxable year in which the related taxes must be remitted to the relevant taxing authorities. 11.3 The Company and Executive shall each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by Section 11.2 hereof. 11.4 The federal tax returns filed by Executive (and any filing made by a consolidated tax group which includes the Company) shall be prepared and filed on a basis consistent with the determination of the Accounting Firm with respect to the BenefitParachute Tax payable by Executive, it as the same may be amended or supplemented. Executive shall furnish make proper payment of the amount of any Parachute Tax, and at the request of the Company, provide to the Company true and Employee correct copies (with an opinion any amendments) of his federal income tax return as filed with the Internal Revenue Service, and such other documents reasonably acceptable to Employee that no Excise Tax will be imposed with respect to requested by the Company, evidencing such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeepayment.

Parachute Payments. In the event that the severance and other benefits provided for 2.4.1 Anything in this Agreement to Employee the contrary notwithstanding, if any benefit the Executive would receive from the Company pursuant to this Agreement or otherwise (the a “BenefitPayment”), determined without regard to any additional payment required under this section 4, ) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee such Payment shall be entitled equal to receive from the Company Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion of the Payment, up to and including the total Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the Executive’s receipt, on an additional payment (after-tax basis, of the “Gross-Up Payment”) in an greater amount sufficient of the Payment notwithstanding that all or some portion of the Payment may be subject to reimburse Employee for both (A) such the Excise Tax. If acceleration of vesting of stock award compensation is to be reduced so that the Payment equals the Reduced Amount, and (B) such acceleration of vesting shall be cancelled in the income, excise, employment and any other taxes imposed on reverse order of the Gross Up Payment provided under this Section 4. date of grant of the Executive’s stock awards unless the Executive elects in writing a different order for cancellation. 2.4.2 The Company shall appoint a nationally recognized independent accounting firm engaged by to make the Company determinations required hereunder, which accounting firm shall not then be serving as accountant or auditor for general audit purposes as of the day prior to the effective date of individual, entity or group that effected the Change of Control shall perform the foregoing calculationsin Control. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. . 2.4.3 The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee the Executive within fifteen (15) calendar days after the date on which Employeethe Executive’s right to the Benefit a Payment is triggered (if requested at that time by the Company or by Employeethe Executive) or such other time as requested by the Company or by Employeethe Executive. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the Benefitapplication of the Reduced Amount, it shall furnish the Company and Employee the Executive with an opinion reasonably acceptable to Employee the Executive that no Excise Tax will be imposed with respect to such BenefitPayment. Any good faith determinations of The Company shall be entitled to rely upon the accounting firm made hereunder firm’s determinations, which shall be final, final and binding and conclusive upon the Company and Employeeon all persons.

Parachute Payments. In Notwithstanding anything to the contrary in this Agreement, in the event that any payment, benefit or distribution by the severance and other benefits provided Company to or for in the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement to Employee or otherwise (the a “BenefitPayment”), determined without regard would be subject to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of excise tax imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable with respect to such excise tax (such excise tax, together with any such interest and or penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee shall be entitled to receive from the Company shall pay to the Executive an additional payment (the a “Gross-Up up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged that after payment by the Company for general audit purposes as Executive of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen taxes (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company including any interest or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be penalties imposed with respect to such Benefit. Any good faith determinations taxes), including any Excise Tax imposed on any Gross-up Payment, the Executive retains an amount of the accounting firm made hereunder Gross-up Payment equal to the Excise Tax imposed upon the Payments. The Company and the Executive shall be finalmake an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service which, binding and conclusive upon if successful, would require the Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by the Company and Employeethe Executive) within 10 business days of the receipt of such claim. The Company shall notify the Executive in writing at least 10 business days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If the Company decides to contest such claim, then the Executive shall cooperate fully with the Company in such action; provided, however, the Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Company’s action. If, as a result of the Company’s action with respect to a claim, the Executive receives a refund of any amount paid by the Company with respect to such claim, then the Executive shall promptly pay such refund to the Company. If the Company fails to timely notify the Executive whether it will contest such claim or the Company determines not to contest such claim, then the Company shall immediately pay to the Executive the portion of such claim, if any, which it has not previously paid to the Executive.

Parachute Payments. In the event that it shall be determined under this Section 7.3 that any payment or benefit to Executive or for the severance and other benefits provided for in benefit of Executive or on Executive’s behalf (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement to Employee or any other agreement, arrangement or plan with the Company or any Affiliate (as defined below) (individually, a “Payment” and collectively, the “BenefitPayments”), determined without regard ) would be subject to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of excise tax imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable with respect to such excise tax successor provision thereto (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee Executive shall be entitled to receive from the Company an one or more additional payment payments (individually, a “Gross-Up Payment” and collectively, the “Gross-Up PaymentPayments”) in an aggregate amount sufficient to reimburse Employee for both such that the net amount of the Payments and the Gross-Up Payments retained by Executive after the payment of all Excise Taxes (A) such Excise Tax, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company interest and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be penalties imposed with respect to such Benefit. Any good faith determinations Excise Taxes) on the Payments and all federal, state and local income tax, employment taxes and Excise Taxes (including any interest and penalties imposed with respect to such taxes and Excise Taxes) on the Gross-Up Payments provided for in this Section 7.3, and taking into account any lost or reduced tax deductions on account of the Gross-Up Payments, shall be equal to the Payments. For purposes of this Section 7.3, an “Affiliate” shall mean any successor to all or substantially all of the business and/or assets of the Company, any person acquiring ownership or effective control of the Company or ownership of a substantial portion of the assets of the Company’s assets, or any other person whose relationship to the Company, such successor or such person acquiring ownership or control is such as to require attribution between the parties under Section 318(a) of the Code. (a) All determinations required to be made under this Section 7.3, including whether and when any Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, shall be made by the Accountants (as defined below), which shall provide Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment within thirty (30) days of the receipt of notice from Executive or the Company that Executive has received or will receive a Payment. For the purposes of this Section 7.3, the “Accountants” shall mean the Company’s independent certified public accounting firm made serving immediately prior to the Change of Control (or other change in ownership or effective control, or change in ownership of a substantial portion of the assets, of a corporation, as defined in Section 280G of the Code) with respect to which such determination is being made. In the event that the Accountants are also serving as the accountants, auditors or consultants for the individual, entity or group effecting the Change of Control (or other change in ownership or effective control, or change in ownership of a substantial portion of the assets, of a corporation, as defined in Section 280G of the Code), the Company shall appoint another nationally recognized independent certified public accounting firm, reasonably acceptable to Executive, to make the determinations required hereunder (which accounting firm shall then be referred to as the “Accountants” hereunder). All fees and expenses of the Accountants shall be final, binding and conclusive upon borne solely by the Company and EmployeeCompany.

Parachute Payments. In (a) Grantee shall bear all expense of, and be solely responsible for, any excise tax imposed by Section 4999 of the event that the severance and other benefits provided for in this Agreement to Employee Code (the “BenefitExcise Tax”); provided, determined without regard however, that any payment or benefit received or to be received by Grantee (whether payable under the terms of this Agreement or any additional payment required other plan, arrangement or agreement with the Company or any of its affiliates) (collectively, the “Payments”) that would constitute a “parachute payment” within the meaning of Section 280G of the Code, shall be reduced to the extent necessary so that no portion thereof shall be subject to the Excise Tax but only if, by reason of such reduction, the net after-tax benefit received by Grantee exceeds the net after-tax benefit that would be received by Grantee if no such reduction was made. If a reduction in payments or benefits constituting “parachute payments” is necessary under this section 4the preceding sentence, would the reduction shall be made in the manner that results in the greatest economic benefit for Grantee. (b) The “net after-tax benefit” shall mean (i) the Payments Grantee receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”), and less (ii) be subject to the excise tax imposed amount of all federal, state and local income and employment taxes payable by Section 4999 of the Code or any interest or penalties payable Grantee with respect to the foregoing calculated at the highest marginal income tax rate for each year in which the foregoing shall be paid to Grantee (based on the rate in effect for such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to year as set forth in the “Excise Tax”Code as in effect at the time of the first payment of the foregoing), then Employee shall be entitled to receive from the Company an additional payment less (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (Biii) the income, excise, employment amount of Excise Tax imposed with respect to the payments and any other taxes imposed on the Gross Up Payment provided under this benefits described in Section 4. 25(a) above. (c) The independent registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change event described in Section 280G(b)(2)(A)(i) of Control the Code shall perform the foregoing calculations. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting such change in control, change of ownership or similar transaction, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. . (d) The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee Grantee within fifteen thirty (1530) calendar days after the date on which EmployeeGrantee’s right to the Benefit a Payment is triggered (if requested at that time by the Company or by EmployeeGrantee) or such other time as reasonably requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such BenefitGrantee. Any good faith determinations of the independent registered public accounting firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeGrantee.

Parachute Payments. In (a) If it shall be determined that any payment, distribution, or benefit received or to be received by the event that Executive from either Bally or the severance and other benefits provided for in this Agreement to Employee Company (the “Benefit”), determined without regard to any additional payment required under this section 4, "Payments") would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Code Section 4999 of (the Code or any interest or penalties payable 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 Employee the Executive shall be entitled to receive from the Company an additional payment from Bally or the Company (the “"Excise Tax Gross-Up Payment”") in an amount sufficient to reimburse Employee for both such that the net amount retained by the Executive, after the calculation and deduction of any Excise Tax (Atogether with any penalties and interest that have been or will be imposed on the Executive in connection therewith) such Excise Taxon the Payments and any federal, state, and local income taxes, excise tax, and payroll taxes (Bincluding the tax imposed by Code Section 3101(b)) on the Excise Tax Gross-Up Payment provided for in this subsection 10(a), shall be equal to the Payments. In determining this amount, the amount of the Excise Tax Gross-Up Payment attributable to federal income taxes shall be reduced by the maximum reduction in federal income taxes that could be obtained by the deduction of 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 subject to income, excise, employment and any other taxes imposed on or payroll tax withholding to the Gross Up Payment provided under extent required by applicable law. No payments pursuant to this Section 4. The accounting firm engaged 10 shall be duplicative of any payments already made by Bally, the Company for general audit purposes as Company, or any affiliate of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the either. (b) All determinations by such accounting firm required to be made hereunder. The accounting firm engaged under this Section 10, 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 make be utilized in arriving at such determination, except as specified in subsection 10(a) above, shall be made by the determinations hereunder Company's independent auditors (the "Accounting Firm"), which shall provide its calculations, together with detailed supporting documentation, calculations both to the Company and the Executive within 15 business days after Bally or the Company makes any Payments to Employee the Executive. The determination of tax liability and the assumptions made by the Accounting Firm shall be subject to review by the Executive's tax advisors, and, if the Executive's tax advisors do not agree with the determination reached by the Accounting Firm, then the Accounting Firm and the Executive's tax advisors shall jointly designate a nationally-recognized public accounting firm, which shall make the determination. All fees and expenses of the accountants and tax advisors retained by either the Executive or the Company shall be borne by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this subsection 10(b), shall be paid by the Company to the Executive within fifteen (15) calendar five days after the date on which Employee’s right receipt of the determination. Any determination by a jointly-designated public accounting firm shall be binding upon the Company and the Executive. (c) As a result of the uncertainty in the application of Code Section 4999 at the time of the initial determination by Bally or the Company, it is possible that the Executive may be required to make one or more payments of Excise Tax to the Benefit is triggered Internal Revenue Service, together with interest and/or penalties that have been imposed upon the Executive in connection therewith, whether upon the Executive's filing of his original or amended tax returns or upon a subsequent audit, administrative appeal or judicial determination, which exceed the amounts taken into account in determining the initial Excise Tax Gross-Up Payment made pursuant to Section 10(a) (if requested such excess payments referred to as the "Deficiency"). In such an event, there shall be an additional Excise Tax Gross-Up Payment computed on the Deficiency in the same manner as the Excise Tax Gross-Up Payment in Section 1O(a) above, and the same shall be promptly paid by the Company to or for the benefit of the Executive. In the event that any Excise Tax Gross-Up Payment exceeds the amount subsequently determined to be due, such excess shall constitute a loan from the Company to the Executive payable on the fifth day after demand by the Company (together with interest at that time the rate provided in Section 1274(b)(2)(B) of the Code). (d) Notwithstanding anything herein to the contrary, no Excise Tax Gross-Up Payment shall be made pursuant to this Section 10 if, and to the extent that, such Excise Tax Gross-Up Payment has already been paid by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect Bally pursuant to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeBally Employment Agreement.

Parachute Payments. In (a) Grantee shall bear all expense of, and be solely responsible for, any excise tax imposed by Section 4999 of the event that the severance and other benefits provided for in this Agreement to Employee Code (the “BenefitExcise Tax”); provided, determined without regard however, that any payment or benefit received or to be received by Grantee (whether payable under the terms of this Agreement or any additional payment required other plan, arrangement or agreement with the Company or any of its affiliates) (collectively, the “Payments”) that would constitute a “parachute payment” within the meaning of Section 280G of the Code, shall be reduced to the extent necessary so that no portion thereof shall be subject to the Excise Tax but only if, by reason of such reduction, the net after-tax benefit received by Grantee exceeds the net after-tax benefit that would be received by Grantee if no such reduction was made. If a reduction in payments or benefits constituting “parachute payments” is necessary under this section 4the preceding sentence, would the reduction shall be made in the manner that results in the greatest economic benefit for Grantee. (b) The “net after-tax benefit” shall mean (i) the Payments that Grantee receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”), and less (ii) be subject to the excise tax imposed amount of all federal, state and local income and employment taxes payable by Section 4999 of the Code or any interest or penalties payable Grantee with respect to the foregoing calculated at the highest marginal income tax rate for each year in which the foregoing shall be paid to Grantee (based on the rate in effect for such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to year as set forth in the “Excise Tax”Code as in effect at the time of the first payment of the foregoing), then Employee shall be entitled to receive from the Company an additional payment less (the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, and (Biii) the income, excise, employment amount of Excise Tax imposed with respect to the payments and any other taxes imposed on the Gross Up Payment provided under this benefits described in Section 4. 24(a) above. (c) The independent registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change event described in Section 280G(b)(2)(A)(i) of Control the Code shall perform the foregoing calculations. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting such change in control, change of ownership or similar transaction, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. . (d) The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee Grantee within fifteen thirty (1530) calendar days after the date on which EmployeeXxxxxxx’s right to the Benefit a Payment is triggered (if requested at that time by the Company or by EmployeeGrantee) or such other time as reasonably requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such BenefitGrantee. Any good faith determinations of the independent registered public accounting firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeGrantee.

Parachute Payments. In A. If it shall be determined that any payment, distribution or benefit received or to be received by Merriman from the event that Company or any of its Affiliates, whether paid or xxxxxxx or distributed or distributable pursuant to the severance and other benefits provided for in terms of this Agreement or otherwise pursuant to Employee or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, phantom stock, performance share, performance unit, restricted stock, stock appreciation right or similar right, or the lapse or termination of any restriction on, or the vesting or exercisability of, any of the foregoing (individually and collectively, "Payments") would be subject to the “Benefit”), determined without regard to any additional payment required under this section 4, would (i) constitute “parachute payments” within the meaning of excise tax imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”), and (ii") be subject or to the excise any similar tax imposed by Section 4999 of the Code state or local law, or to any interest or penalties payable with respect to such excise tax taxes (such excise taxtax or taxes, together with any such interest and penalties, are hereinafter being hereafter collectively referred to as the “"Excise Tax”"), then Employee Merriman shall be entitled to receive from the Company an additional payment from the Xxxxxxx (the “"Excise Tax Gross-Up Payment”") in an amount sufficient to reimburse Employee for both such that the net amount retained by Merriman, after the calculation and deduction of any Excise Tax on txx Xxxxxnts (Atogether with any penalties and interest that have been or will be imposed on Merriman in connection therewith) such Excise Tax, and (B) the income, excise, employment and any other federal, state and local ixxxxx xxxes, Excise Taxes and payroll taxes (including the tax imposed by Section 3101(b) of the Code) on the Gross Excise Tax Gross-Up Payment provided under for in this Section 419, shall be equal to the Payments. The accounting firm engaged In computing the amount of this payment, it shall be assumed that Merriman is subject to tax by each taxing jurisdiction at the Company highesx xxxxxxal tax rate in the respective taxing jurisdiction of Merriman, taking into account the city and state in which Merriman rxxxxxx, but giving effect to the tax benefit, if any, whicx Xxxxxxan may enjoy to the extent that any such tax is deductible in xxxxxxxxing the tax liability of any other taxing jurisdiction (provided that the highest marginal tax rate for general audit federal income tax purposes as shall be determined under Section 1 of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the Code). B. All determinations by such accounting firm required to be made hereunder. The accounting firm engaged under this Section 19, 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 make be utilized in arriving at such determination, except as specified in Section 19.A., shall be made by the determinations hereunder Company's independent auditors (the "Accounting Firm"), which shall provide its calculations, together with detailed supporting documentation, calculations both to the Company and to Employee Merriman within fifteen (15) calendar 15 business days after the date on which Employee’s right Company makes any Paymentx xx Xxxriman. The determination of tax liability and the assumptions madx xx xxx Accounting Firm shall be subject to review by Merriman's tax advisor, and, if Merriman's tax advisor does not agree with the determination reached by the Accounting Firm, then the Accounting Firm and Merriman's tax advisor shall jointly designate a nationally-recognized public accounting firm within five (5) business days after notice has been given to the Benefit is triggered (if requested at that time Company of Merriman's disagreement with the Accounting Firm's calculation, which shall make the determination within 15 business days after its appointment. If the parties cannot agree on a nationally recognized public accounting firm, then both parties shall select a nationally recognized public accounting firm who shall then jointly select a third nationally recognized public accounting firm which shall make the determination within 15 business days after its appointment. All fees and expenses of the accountants and tax advisors retained by either Merriman or the Company shall be borne by the Company. Any Excise Tax Xxxxx-Up Payment, as determined pursuant to this Section 19, shall be paid by the Company or to Merriman within five (5) days after the receipt of the determination, xxxxxxt to applicable federal, state, local and Excise Tax withholding requirements. Any determination by Employee) or such other time as requested by a jointly designated public accounting firm shall be binding upon the Company or by Employeeand Merriman. If the an accounting firm determines that no Excise Tax is payxxxx xx Merriman, it shall, at the same time as it makes such determination, xxxxxxx the Company and Merriman an opinion that Merriman has substantial authority not to rxxxxx xxy Excise Tax on hxx xxxxxal, state or local income or other tax return. C. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination hereunder, 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 the Internal Revenue Service ("IRS"), on audit, asserts that Merriman has made an underpayment and Merriman is required (by reasox xx xxxtlement or otherwise) to make x xxxxxxt of any Excise Tax, or if Merriman is required to make one or more payments of Excise Tax to txx XXX (and/or interest or penalties thereon) upon the filing of his original or amended tax returns which exceed the amounts taken into account in determining the initial Excise Tax Gross-Up Payment made pursuant to Sections 19A. and B., then in either of such events, any such Underpayment calculated in accordance with and in the same manner as the Excise Tax Gross-Up Payment in Section 19.A. shall be promptly paid by the Company to or for the benefit of Merriman. In addition, the Company will pay Merriman an amount equal xx xxx penalties, interest or additions to xx xxxxxsed against him as a result of the Underpayment, which amounts shall be grossed up for any federal, state, local or Excise Taxes payable with respect to such penalties, interest or additions to tax such that Merriman receives a net amount equal to the Benefitpenalties, it interest and xxxxxxxxs to tax assessed against him (determined in the same manner as described in Section 19.A.). Merriman shall furnish not be obligated to contest any proposed assessment ox xxx Xxderpayment and may settle any such audit action or proceeding involving an Underpayment at his discretion; provided, however, that Merriman shall, upon notice of examination by the IRS, give notice txxxxxx xo the Company and Employee the Company, at its sole cost and in its sole discretion, may, on behalf of Merriman, defend and contest against any proposed IRS deficiency. In xxx xxxnt that the Company assumes the defense of the proposed deficiency, the Company shall immediately, upon written request of Merriman, secure all of its possible obligations to Merriman as provxxxx xxx in this Section 19.C. by either posting casx xxxxxxeral in escrow or providing Merriman with an opinion reasonably acceptable a "clean irrevocable letter of credit" in the amount ox xxx xx the Company's possible obligations to Employee Merriman pursuant to this Section 19.C. The terms of such escrow or xxxxx xxrevocable letter of credit shall be negotiated by Company and Merriman at such time. Merriman agrees to execute any documents, incxxxxxx Xowers of Attornxx, xxxx may be necessary to facilitate Company's defense and/or contesting the IRS' assertions. In the event that no the Excise Tax will Gross-Up Payment exceeds the amount subsequently determined to be imposed with respect due, such excess shall constitute a loan from the Company to such Benefit. Any good faith determinations Merriman payable on the fifth day after demand by the Company (togetxxx xxxx interest at the rate provided in Section 1274(b)(2)(B) of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeCode).

Parachute Payments. In (a) If it shall be determined that any payment, distribution, or benefit received or to be received by the event that the severance and other benefits provided for in Executive under this Agreement to Employee (the “Benefit”), determined without regard to any additional payment required under this section 4, "Payments") would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by Code Section 4999 of (the Code or any interest or penalties payable 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 Employee the Executive shall be entitled to receive an additional payment from the Company an additional payment (the “"Excise Tax Gross-Up Payment”") in an amount sufficient to reimburse Employee for both such that the net amount retained by the Executive, after the calculation and deduction of any Excise Tax (Atogether with any penalties and interest that have been or will be imposed on the Executive in connection therewith) such Excise Taxon the Payments and any federal, state, and local income taxes, excise tax, and payroll taxes (Bincluding the tax imposed by Code Section 3101(b)) on the Excise Tax Gross-Up Payment provided for in this subsection 3(a), shall be equal to the Payments. In determining this amount, the amount of the Excise Tax Gross-Up Payment attributable to federal income taxes shall be reduced by the maximum reduction in federal income taxes that could be obtained by the deduction of 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 subject to income, excise, employment and any other taxes imposed on the Gross Up Payment provided under this Section 4. The accounting firm engaged by the Company for general audit purposes as of the day prior or payroll tax withholding to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the extent required by applicable law. (b) All determinations by such accounting firm required to be made hereunder. The accounting firm engaged under this Section 3, 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 make be utilized in arriving at such determination, except as specified in subsection 3(a) above, shall be made by the determinations hereunder Company's independent auditors (the "Accounting Firm"), which shall provide its calculations, together with detailed supporting documentation, calculations both to the Company and to Employee the Executive within fifteen (15) calendar 15 business days after the date on which Employee’s right Company makes any Payments to the Benefit is triggered (Executive. The determination of tax liability and the assumptions made by the Accounting Firm shall be subject to review by the Executive's tax advisors, and, if requested at that time the Executive's tax advisors do not agree with the determination reached by the Accounting Firm, then the Accounting Firm and the Executive's tax advisors shall jointly designate a nationally-recognized public accounting firm, which shall make the determination. All fees and expenses of the accountants and tax advisors retained by either the Executive or the Company shall be borne by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this subsection 3(b), shall be paid by the Company or to the Executive within five days after the receipt of the determination. Any determination by Employee) or such other time as requested by the Company or by Employee. If the a jointly-designated public accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeethe Executive. (c) As a result of the uncertainty in the application of Code Section 4999 at the time of the initial determination by the Company, it is possible that the Executive may be required to make one or more payments of Excise Tax to the Internal Revenue Service, together with interest and/or penalties that have been imposed upon the Executive in connection therewith, whether upon the Executive's filing of his original or amended tax returns or upon a subsequent audit, administrative appeal or judicial determination, which exceed the amounts taken into account in determining the initial Excise Tax Gross-Up Payment made pursuant to Section 3(a) (such excess payments referred to as the "Deficiency"). In such an event, there shall be an additional Excise Tax Gross-Up Payment computed on the Deficiency in the same manner as the Excise Tax Gross-Up Payment in Section 3(a) above, and the same shall be promptly paid by the Company to or for the benefit of the Executive. In the event that any Excise Tax Gross-Up Payment exceeds the amount subsequently determined to be due, such excess shall constitute a loan from the Company to the 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). (d) Notwithstanding anything herein to the contrary, no Excise Tax Gross-Up Payment shall be made pursuant to this Section 3 if, and to the extent that, such Excise Tax Gross-Up Payment has already been paid by the Company pursuant to the Employment Agreement.

Parachute Payments. In the event that the severance any payments and other benefits provided for in this Agreement or otherwise payable to Employee you (the “Benefit”), determined without regard to any additional payment required under this section 4, "Benefits") would (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”"), and (ii) but for this subsection would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable 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 Employee then, the Benefits to which you are entitled pursuant to this Agreement shall be entitled either: (a) Provided to receive from you in full, or (b) Provided to you at such lesser extent that would result in no portion of the Company an additional payment (Benefits being subject to the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) such Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and (B) the income, excise, employment and any other taxes imposed applicable taxes, results in the receipt by you, on an after tax basis, of the Gross Up Payment provided greatest amount of the Benefits, notwithstanding that all or some portion of the Benefits may be taxable under the Excise Tax. Unless you and the Company otherwise agree in writing, any determination required under this Section 4subsection shall be made in writing in good faith by an accountant selected by you. The accounting firm engaged In the event of a reduction of the Benefits under this Agreement, you shall be given the choice of which of the Benefits to reduce. For purposes of making the calculations required by this subsection, the accountant that you select may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. You and the Company for general audit purposes shall furnish your accountant such information and documents as of the day prior he may reasonably request in order to the effective date of the make a determination under this subsection. Any payment and benefits received by you upon a Change of in Control shall perform be in lieu of any other severance payment to you, including the foregoing calculationsseverance payment provided in subsection 7 herein. The In the event that you become entitled to payment and benefits upon a Change in Control, the Company shall bear all expenses with respect have no further obligation to pay you any base salary, bonus or other compensation or benefits under this Agreement, except for benefits due to you (or your dependents) under the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations terms of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeeyour benefit plans.

Parachute Payments. In a. Notwithstanding anything to the event that the severance and other benefits provided for contrary contained in this Agreement, to the extent that any amount, stock option, restricted stock, RSUs, other equity awards or benefits paid or distributed to the Executive pursuant to this Agreement to Employee or any other agreement or arrangement between the Company and the Executive (collectively, the “Benefit”), determined without regard to any additional payment required under this section 4, would "280G Payments") (ia) constitute “a "parachute payments” payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (iib) but for this Section 16, would be subject to the excise tax imposed by Section 4999 of the Code Code, then the 280G Payments shall be payable either (i) in full or any interest or penalties payable with respect (ii) in such lesser amount which would result in no portion of such 280G Payments being subject to such excise tax under Section 4999 of the Code; whichever of the foregoing amounts, taking into account the applicable federal, state and local income or excise taxes (including the excise tax imposed by Section 4999) results in the Executive's receipt on an after-tax basis, of the greatest amount of benefits under this Agreement, notwithstanding that all or some portion of such excise tax, together with any such interest benefits may be taxable under Section 4999 of the Code. Unless the Executive and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) otherwise agree in an amount sufficient to reimburse Employee for both (A) such Excise Taxwriting, and (B) the income, excise, employment and any other taxes imposed on the Gross Up Payment provided determination required under this Section 4. The accounting firm engaged shall be made in writing by an independent public accountant selected by the Company (the "Accountants"), whose determination shall be conclusive and binding upon the Executive and the Company for general audit all purposes. For purposes as of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the day prior Code. The Company and the Executive shall furnish to the effective date of Accountants such information and documents as the Change of Control shall perform the foregoing calculationsAccountants may reasonably request in order to make a determination under this Section. The Company shall bear all expenses costs the Accountants may reasonably incur in connection with respect to any calculations contemplated by this Section, as well as any reasonable legal or accountant expenses, or any additional taxes, that the determinations Executive may incur as a result of any calculation errors made by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to Accountant and/or the Company and to Employee within fifteen (15) calendar days after in connection with the date on which Employee’s right to the Benefit is triggered (if requested at that time Code Section 4999 excise tax analysis contemplated by the Company or by Employee) or such other time as requested by the Company or by Employee. If the accounting firm determines that no Excise Tax is payable with respect to the Benefit, it shall furnish the Company and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Employeethis Section.

Parachute Payments. In If the event that Executive is, in the severance opinion of a nationally recognized accounting firm jointly selected by the Executive and other benefits provided for in this Agreement the Company, required to Employee (the pay an excise tax on “Benefit”), determined without regard to any additional payment required under this section 4, would (i) constitute “excess parachute payments” within the meaning of (as defined in Section 280G 280G(b) of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) be subject to the excise tax imposed by under Section 4999 of the Code or as a result of an acceleration of the vesting of stock options, the Company shall have an absolute and unconditional obligation to pay the Executive in accordance with the terms of this Section 9 the amount of such taxes. In addition, the Company shall have an absolute and unconditional obligation to pay the Executive such additional amounts as are necessary to place the Executive in the exact same financial position that he would have been in if he had not incurred any interest or penalties payable with respect to such excise expected tax (such excise taxliability under Section 4999 of the Code. The determination of the exact amount, together with if any, of any such interest expected “excess parachute payments” and penalties, are hereinafter collectively referred to as any expected tax liability under Section 4999 of the “Excise Tax”), then Employee Code shall be entitled to receive from made by a nationally-recognized independent accounting firm selected by the Company an additional payment (Executive and the “Gross-Up Payment”) in an amount sufficient to reimburse Employee for both (A) Company. The fees and expenses of such Excise Tax, accounting firm shall be paid by the Company. The determination of such accounting firm shall be final and (B) the income, excise, employment and any other taxes imposed binding on the Gross Up Payment provided parties. The Company irrevocably agrees to pay to the Executive, in immediately available funds to an account designated in writing by the Executive, any amounts to be paid under this Section 4. The accounting firm engaged 9 within two business days after receipt by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and to Employee within fifteen (15) calendar days after the date on which Employee’s right to the Benefit is triggered (if requested at that time by the Company or by Employee) or such other time as requested by the Company or by Employee. If written notice from the accounting firm determines which sets forth such accounting firm’s determination. In addition, in the event that no Excise Tax is payable with respect such payments are not sufficient to pay all excise taxes on “excess parachute payments” under Section 4999 of the BenefitCode as a result of an acceleration of the vesting of options or for any other reason and to place the Executive in the exact same financial position that he would have been in if he had not incurred any expected tax liability under Section 4999 of the Code as a result of a change in control, it shall furnish then the Company shall have an absolute and Employee with an opinion reasonably acceptable unconditional obligation to Employee pay the Executive such additional amounts as may be necessary to pay such excise taxes and place the Executive in the exact same financial position that no Excise Tax will be imposed with respect to such Benefit. Any good faith determinations he would have been had he not incurred any tax liability as a result of a change in control under the accounting firm made hereunder shall be final, binding and conclusive upon the Company and EmployeeCode.