Common use of Tax gross-up Clause in Contracts

Tax gross-up. (a) Notwithstanding anything in this Agreement to the contrary, if it shall be determined that any payments, benefits and distributions due under this Agreement and those which are otherwise payable or distributable to or for the benefit of the Employee relating to the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, including without limitation (i) payments, benefits and distributions pursuant to Section 3 of this Agreement, and (ii) deemed amounts under the Code, resulting from the acceleration of the vesting of any stock options or other equity-based incentive award) (all such payments, benefits and distributions being referred to herein as “Gross Payments”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Employee with respect to the excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to the Employee an additional payment (a “Gross-Up Payment”) in an amount such that after the 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 on the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed on the Gross Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Gross Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Employee without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Tax gross-up. (a) Notwithstanding anything in this Agreement to the contrary, if it shall be determined that any payments, benefits and distributions due under this Agreement and those which are otherwise payable or distributable to or for the benefit of the Employee relating to the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, including without limitation (i) payments, benefits and distributions pursuant to Section 3 of this Agreement, including the Additional Payment, and (ii) deemed amounts under the Internal Revenue Code of 1986, as amended (the “Code”), resulting from the acceleration of the vesting of any stock options or other equity-based incentive award) (all such payments, benefits and distributions being referred to herein as “Gross Payments”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Employee with respect to the excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to the Employee an additional payment (a “Gross-Up Payment”) in an amount such that after the 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 on the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed on the Gross Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Gross Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Employee without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Tax gross-up. Notwithstanding the foregoing, if (a) Notwithstanding anything in the payor Party redomiciles or licenses or assigns its rights or obligations under this Agreement to a Third Party, (b) as a result of such redomiciliation or license or assignment, the contrary, if it shall be determined that payor Party (or its licensee or assignee) is required by Applicable Law to withhold taxes from or in respect of any payments, benefits and distributions due amount payable under this Agreement and those which are otherwise payable or distributable to or for the benefit of the Employee relating to the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, including without limitation (i) payments, benefits and distributions pursuant to Section 3 of this Agreement, and (c) such withholding taxes exceed the amount of CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE COMPANY IF PUBLICLY DISCLOSED. withholding taxes that would have been applicable but for such redomiciliation or license or assignment, then any such amount payable shall be increased to take into account such withholding taxes as may be necessary so that, after making all required withholdings (including withholdings on the additional amounts payable), the payee Party (or its assignee) receives an amount equal to the sum it would have received had no such increased withholding been made. The obligation to pay additional amounts pursuant to the preceding sentence shall not apply, however, to the extent such increased withholding tax (i) would not have been imposed but for the license or assignment by the payee Party of its rights or obligations under this Agreement or the redomiciliation of such payee Party outside of the United States, to the extent such license or assignment or redomiciliation occurs after the redomiciliation or license or assignment by the payor Party described in the first sentence of this Section 7.10.3, or (ii) deemed amounts under are attributable to the Codefailure by the payee Party to comply with the requirements of Section 7.10.4. Further, resulting from the acceleration for avoidance of doubt, this Section 7.10.3 does not apply to any withholding tax arising as a result of the vesting redomiciliation of any stock options the payee Party or the license or assignment of its rights or obligations under this Agreement. To the extent the payee Party receiving the additional amounts required by this Section 7.10.3 and the payee Party’s Affiliates, taken as a whole, actually realize an overall reduction in cash taxes otherwise due (determined on a with and without basis and taking into account the overall tax liability of the payee Party’s affiliates) as a result of a foreign tax credit, a tax refund or other equity-based incentive award) tax benefit attributable to withholding taxes in respect of which the payee Party received additional amounts pursuant to this Section 7.10.3 (all such paymentsreduction, benefits and distributions being referred to herein as a “Gross PaymentsTax Cost Benefit”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Employee with respect to the excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company payee Party shall pay to the Employee an payor Party that paid such additional payment (a “Gross-Up Payment”) in amounts an amount equal to such that after Tax Cost Benefit (but only to the extent of such additional amounts paid), net of all reasonable out-of-pocket expenses incurred by the payee Party and its Affiliates in connection with the obtaining or receipt of such Tax Cost Benefit; such payment by the Employee payee Party to the payor Party shall be made within [***] of all taxes (including any interest filing a return reflecting such Tax Cost Benefit or penalties imposed with respect in the case of a Tax Cost Benefit that is a tax refund, receiving such refund. The foregoing sentence shall not be construed to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on require the Gross-Up Paymentpayee Party to make available its tax returns to the payor Party; however, the Employee retains an amount payee Party shall have the obligation (i) to provide the payor Party, upon payment of such additional amounts under this Section 7.10.3, with a written, good-faith analysis as to whether it anticipates realizing a Tax Cost Benefit from such additional amounts and (ii) to notify the Gross-Up Payment equal to the Excise payor Party when such Tax imposed on the Gross PaymentsCost Benefit is realized. Notwithstanding the foregoing provisions Solely for purposes of this Section 10(a)7.10.3, if it a Party’s “domicile” shall be determined that the Employee is entitled to include its jurisdiction of incorporation or tax residence and a Gross-Up Payment, but that the Gross Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to Party’s “redomiciliation” shall include a reincorporation or less than 10% other action resulting in a change in tax residence of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Employee without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionapplicable Party or its assignee.

Tax gross-up. (a) Notwithstanding anything Unless otherwise expressly provided in this Agreement to the contrary, if it shall be determined that any payments, benefits and distributions due under this Agreement and those which are otherwise payable or distributable to or for the benefit of the Employee relating to the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwisethe Debentures, including without limitation (i) payments, benefits and distributions pursuant to Section 3 of this Agreement, and (ii) deemed amounts under the Code, resulting from the acceleration of the vesting of any stock options or other equity-based incentive award) (all such payments, benefits and distributions being referred to herein as “Gross Payments”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred payments made by the Employee Corporation, Depository, a Depository Participant or a financial intermediary having an account with any Depository Participant making such payment (the “Payor”) under or with respect to the excise Debentures (including for greater certainty and without limitation, the delivery of Common Shares or other property in connection with the exercise of a conversion of Debentures), to a holder will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge including penalties, interest and other liabilities related thereto imposed or levied by or on behalf of the Government of Canada or of any province or territory thereof or by any authority or agency therein or thereof having power to tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise TaxCanadian Taxes”), then unless there is an obligation on the Company shall pay Payor to withhold or deduct Canadian Taxes by law or by the interpretation or administration thereof. Notwithstanding anything to the Employee contrary contained herein or in any Debenture, if the Payor is so required to withhold or deduct any amount for or on account of Canadian Taxes from any payment made under or with respect to the Debentures, the Corporation will pay on behalf of each holder as additional interest such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder after such withholding or deduction (and after deducting any Canadian Taxes on such Additional Amounts) will not be less than the amount the holder would have received if such Canadian Taxes had not been withheld or deducted. However, no Additional Amounts will be payable with respect to a payment made to a holder (such holder, an additional payment (a “Gross-Up PaymentExcluded Holder”) in an amount respect of the beneficial owner thereof which is subject to such that after the payment Canadian Taxes by reason of such holder being a resident, domicile or national of, or engaged in business or maintaining a permanent establishment or other presence in, or otherwise having some present or former connection with Canada or any province or territory thereof otherwise than by the Employee mere holding of all taxes (including any interest Debentures 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 on the Gross-Up Payment, the Employee retains an amount receipt of the Gross-Up Payment equal to the Excise Tax imposed on the Gross Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Gross Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Employee without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionthereunder.

Tax gross-up. Notwithstanding any other provisions of this Agreement, in the event that (ai) Notwithstanding anything in this Agreement to any payment or distribution by the contrary, if it shall be determined that any payments, benefits and distributions due under this Agreement and those which are otherwise payable or distributable Company to or for the Executive’s benefit of the Employee relating to the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseany other plan, including without limitation (i) paymentsarrangement or agreement with the Company, benefits and distributions pursuant to Section 3 of this Agreement, and (ii) deemed amounts under any person whose actions result in a Change in Control or any person affiliated with the Code, resulting from the acceleration of the vesting of any stock options Company or other equity-based incentive awardsuch person) (all such paymentspayments and distributions, including the severance payments and benefits and distributions being referred to herein as provided for in Section 9 hereof (the “Gross Severance Payments”), being hereinafter called (“Total Payments”) would be subject (in whole or part) to the excise tax imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision enacted under the Code or any interest or penalties are incurred by the Employee Executive with respect to the such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)) and (ii) the amount of such Total Payments subject to such Excise Tax exceeds $50,000, then the Company shall pay to the Employee Executive an additional cash payment (a the “Tax Gross-Up”) so that after receipt of such Tax Gross-Up, the payment of any additional federal, state and local income taxes on such Tax Gross-Up Payment”) in an amount such that after and the payment by the Employee of all taxes (including any interest or penalties imposed with respect to Excise Taxes, Executive shall receive such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on the Gross-Up Payment, the Employee retains an net amount of the Gross-Up Payment Total Payments equal to the amount that Executive would have received if no Excise Tax imposed on was due. If the Gross Payments. Notwithstanding the foregoing provisions amount of this Section 10(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Gross Total Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Codedoes not exceed $50,000, then the amounts payable to Tax-Gross-Up shall not be paid and the Employee under this Agreement Severance Payments shall be reduced (but not below if necessary, to zero) to the maximum amount extent necessary so that could be paid to no portion of the Employee without giving rise Total Payments is subject to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionTax.

Tax gross-up. (a) Notwithstanding anything in this Agreement herein to the contrary, if it shall be is determined by the Company on or prior to the date the applicable payments and/or benefits are paid or thereafter by the Internal Revenue Service (the "IRS") pursuant to an IRS audit of the Executive's federal income tax return(s) (an "Audit"), that any payments, benefits and distributions due payment or benefit provided to the Executive under this Agreement and those which are otherwise payable or distributable to or for the benefit of the Employee relating to the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, including without limitation (i) payments, benefits and distributions pursuant to Section 3 of this Agreement, and (ii) deemed amounts under the Code, resulting from the acceleration of the vesting of any stock options or other equity-based incentive award) (all such payments, benefits and distributions being referred to herein as “Gross Payments”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, or any interest or penalties are incurred by the Employee with respect to the such excise tax (such excise tax, together with any such interest and penaltiesor penalties thereon, are hereinafter collectively is herein referred to as the “"Excise Tax”"), then the Company shall pay (either directly to the Employee IRS as tax withholdings or to the Executive as a reimbursement of any amount of taxes, interest and penalties paid by the Executive to the IRS) both the Excise Tax and an additional cash payment (a “"Gross-Up Payment”") in an amount such that after will place the Executive in the same after-tax economic position that the Executive would have enjoyed if the payment by or benefit had not been subject to 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 on the Gross-Up Payment, the Employee retains an Tax. The amount of the Gross-Up Payment equal to shall be calculated by the Company's regular independent auditors based on the amount of the Excise Tax imposed on paid by the Gross PaymentsCompany as determined by the Company or the IRS. Notwithstanding If the foregoing provisions amount of this Section 10(a)the Excise Tax determined by the IRS is greater than an amount previously determined by the Company, if it the Company's auditors shall be determined that recalculate the Employee is entitled to a amount of the Gross-Up Payment. The Executive shall promptly notify the Company of any IRS assertion during an Audit that an Excise Tax is due with respect to any payment or benefit, but the Executive shall be under no obligation to defend against such claim by the IRS unless the Company requests, in writing, that the Gross Payments would not be subject Executive undertake the defense of such IRS claim on behalf of the Company and at the Company's sole expense. In such event, the Company may elect to control the conduct to a final determination through counsel of it own choosing and at its sole expense, of any audit, administrative or judicial proceeding involving an asserted liability relating to the Excise Tax if Tax, and the Gross Payments were reduced by an amount that is equal to Executive shall not settle, compromise or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Employee without giving rise to the concede such asserted Excise Tax (and the “Safe Harbor Cap”), and no Gross-Up Payment Executive shall be made to cooperate with the Employee. The reduction Company in each phase of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionany contest.

Tax gross-up. Notwithstanding any other provisions of this Agreement, in the event that (ai) Notwithstanding anything in this Agreement to any payment or distribution by the contrary, if it shall be determined that any payments, benefits and distributions due under this Agreement and those which are otherwise payable or distributable Company to or for the Executive’s benefit of the Employee relating to the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseany other plan, including without limitation (i) paymentsarrangement or agreement with the Company, benefits and distributions pursuant to Section 3 of this Agreement, and (ii) deemed amounts under any person whose actions result in a Change in Control or any person affiliated with the Code, resulting from the acceleration of the vesting of any stock options Company or other equity-based incentive awardsuch person) (all such paymentspayments and distributions, including the severance payments and benefits and distributions being referred to herein as provided for in Section 9 hereof (the “Gross Severance Payments”), being hereinafter called (“Total Payments”) would be subject (in whole or part) to the excise tax imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision enacted under the Code or any interest or penalties (to the extent permitted under Treasury Regulation Section 1.409A-3(i)(1)(v)) are incurred by the Employee Executive with respect to the such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)) and (ii) the amount of such Total Payments subject to such Excise Tax exceeds $50,000, then the Company shall pay to the Employee Executive an additional cash payment (a the “Tax Gross-Up”) so that after receipt of such Tax Gross-Up, the payment of any additional federal, state and local income taxes on such Tax Gross-Up Payment”) in an amount such that after and the payment by the Employee of all taxes (including any interest or penalties imposed with respect to Excise Taxes, Executive shall receive such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on the Gross-Up Payment, the Employee retains an net amount of the Gross-Up Payment Total Payments equal to the amount that Executive would have received if no Excise Tax imposed on was due. If the Gross Payments. Notwithstanding the foregoing provisions amount of this Section 10(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Gross Total Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Codedoes not exceed $50,000, then the amounts payable to Tax-Gross-Up shall not be paid and the Employee under this Agreement Severance Payments shall be reduced (but not below if necessary, to zero) to the maximum amount extent necessary so that could be paid to no portion of the Employee without giving rise Total Payments is subject to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionTax.

Tax gross-up. (a) Notwithstanding anything In the event that the Company undergoes a "Change in this Agreement Ownership or Control" (as defined below), the Company shall, within 30 days after each date on which the Executive becomes entitled to receive (whether or not then due) a Contingent Compensation Payment (as defined below) relating to such Change in Ownership or Control, determine and notify the Executive (with reasonable detail regarding the basis for its determinations) (i) which of the payments or benefits due to the contrary, if it shall be determined that any payments, benefits and distributions due Executive (under this Agreement and those which are otherwise payable or distributable to or for the benefit of the Employee relating to the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) following such Change in Ownership or Control constitute Contingent Compensation Payments, including without limitation (i) payments, benefits and distributions pursuant to Section 3 of this Agreement, and (ii) deemed amounts under the Codeamount, resulting from the acceleration if any, of the vesting of any stock options or other equity-based incentive award) (all such payments, benefits and distributions being referred to herein as “Gross Payments”), would be subject to the excise tax imposed by (the "Excise Tax") payable pursuant to Section 4999 of the Internal Revenue Code or any interest or penalties are incurred of 1986, as amended (the "Code"), by the Employee with respect to the excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to the Employee an additional payment (a “Gross-Up Payment”) in an amount such that after the payment by the Employee of all taxes (including any interest or penalties imposed Executive with respect to such taxes), including, without limitation, any income taxes Contingent Compensation Payment and (and any interest and penalties imposed with respect theretoiii) and Excise Tax imposed on the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal (as defined below) due to the Executive with respect to such Contingent Compensation Payment. Within 30 days after delivery of such notice to the Executive, the Executive shall deliver a response to the Company (the "Executive Response") stating either (A) that he agrees with the Company's determination pursuant to the preceding sentence or (B) that he disagrees with such determination, in which case he shall indicate which payment and/or benefits should be characterized as a Contingent Compensation Payment, the amount of the Excise Tax imposed on with respect to such Contingent Compensation Payment and the Gross Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Gross Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Employee without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment due to the Executive with respect to such Contingent Compensation Payment. The amount and characterization of any item in the Executive Response shall be made final; provided, however, that in the event that the Executive fails to deliver an Executive Response on or before the required date, the Company's initial determination shall be final. Within 90 days after the due date of each Contingent Compensation Payment to the Employee. The reduction of Executive, the amounts payable hereunder, if applicable, Company shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments pay to the Safe Harbor CapExecutive, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If in cash, the reduction of Gross-Up Payment with respect to such Contingent Compensation Payment, in the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced amount determined pursuant to this provisionSection 1.1(a).

Tax gross-up. (a) Notwithstanding anything in this Agreement to the contrary, if it shall be determined that any payments, benefits and distributions due under this Agreement and those which are otherwise payable or distributable to or for the benefit of the Employee relating to the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, including without limitation (i) payments, benefits and distributions pursuant to Section 3 of this Agreement, and (ii) deemed amounts under the Internal Revenue Code of 1986, as amended (the “Code”), resulting from the acceleration of the vesting of any stock options or other equity-based incentive award) (all such payments, benefits and distributions being referred to herein as “Gross Payments”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Employee with respect to the excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to the Employee an additional payment (a “Gross-Up Payment”) in an amount such that after the 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 on the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed on the Gross Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Gross Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Employee without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Tax gross-up. The Republic agrees with each of the Underwriters to make all payments to the Underwriters under the Transaction Documents without withholding or deduction for or on account of any present or future taxes, duties or other governmental charges in the nature of a tax (including any interest, additions to tax or penalties) imposed by the Republic, or any political subdivision or taxing authority thereof or therein or any jurisdiction from or through which the Republic makes a payment under the Transaction Documents, each a “Taxing Jurisdiction”, unless the Republic is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Republic shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction will equal the amounts that would have been received if no withholding or deduction has been made, except to the extent that such taxes, duties or charges (a) Notwithstanding anything in this Agreement were imposed due to some connection of an Underwriter with the contrary, if it shall be determined that any payments, benefits and distributions due under this Agreement and those which are otherwise payable or distributable to or for Taxing Jurisdiction other than the benefit of the Employee relating to the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms mere entering into of this Agreement or otherwisereceipt of payments hereunder or (b) would not have been imposed but for the failure of such Underwriter to comply with any reasonable certification, including without limitation information, documentation, identification or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction if such compliance is required or imposed by law or administrative practice as a precondition to an exemption from, or reduction in, such taxes, duties or other charges, provided, that (i) paymentsany such certification, benefits information, documentation, identification, or other reporting requirements would not be materially more onerous, in form, procedure or substance, than comparable information or other reporting requirements imposed under U.S. tax law, regulation and distributions pursuant to Section 3 of this Agreementadministrative practice (such as IRS Forms X-0XXX, X-0XXX-X, X-0XXX and W-9) and (ii) deemed amounts under the Code, resulting from Republic has notified the acceleration Underwriters in writing of the vesting of any stock options such information or other equity-based incentive award) (all such paymentsreporting requirement at least 15 days before the applicable payment date. The Republic further agrees to indemnify and hold harmless the Underwriters against any documentary, benefits stamp, income, gift, gross turnover, debits and distributions being referred to herein as “Gross Payments”)credits, would be subject to capital, assets, sales, transaction or similar issue tax, duty or other governmental charge in the excise tax nature of a tax, either present or future, imposed by Section 4999 of the Code Republic or any interest political subdivision or penalties are incurred by the Employee with respect to the excise tax (such excise taxtaxing authority thereof or therein, together with including any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to the Employee an additional payment (a “Gross-Up Payment”) in an amount such that after the 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 on the Gross-Up Paymentcreation, the Employee retains an amount holding, issue and initial sale of the Gross-Up Payment equal to the Excise Tax imposed Securities, and on the Gross Payments. Notwithstanding the foregoing provisions of this Section 10(a)execution, if it shall be determined that the Employee is entitled to a Gross-Up Paymentdelivery, but that the Gross Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% performance and enforcement of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Employee without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionTransaction Documents.

Tax gross-up. Any and all payments by the Guarantor hereunder, and any amounts on account of interest or deemed interest, shall be made free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding taxes imposed on net income or franchise taxes of the Bank by the jurisdiction in which such person is organized or has its principal office (aall such non-excluded taxes, levies, imposts, deductions, charges withholdings and liabilities, collectively or individually, “Taxes”). If the Guarantor shall be required to deduct any Taxes from or in respect of any sum payable hereunder to the Bank, (i) the sum payable shall be increased by the amount (an “additional amount”) necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Paragraph 1) the Bank shall receive an amount equal to the sum it would have received had no such deductions been made, (ii) the Guarantor shall make such deductions and (iii) the Guarantor shall pay the full amount deducted to the relevant governmental authority in accordance with applicable law. Notwithstanding anything in this Agreement any other provision hereof to the contrary, if it the Bank assigns this Guaranty to any other Person prior to the occurrence of an Event of Default, then in no event shall the Guarantor be determined that responsible for the payment of any payments, benefits and distributions due Taxes or other sums under this Agreement and those which are otherwise payable or distributable to or for the benefit Paragraph 1 in excess of the Employee relating amount that the Guarantor would otherwise be responsible for if the Bank had not assigned this Guaranty. In addition, the Guarantor agrees to the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, including without limitation (i) payments, benefits and distributions pursuant to Section 3 of this Agreement, and (ii) deemed amounts under the Code, resulting from the acceleration of the vesting of any stock options or other equity-based incentive award) (all such payments, benefits and distributions being referred to herein as “Gross Payments”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Employee with respect to the excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to the Employee an additional relevant governmental authority in accordance with applicable law any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies that arise from any payment (a “Gross-Up Payment”) in an amount such that after made hereunder or from the payment by the Employee of all taxes (including any interest execution, delivery or penalties imposed registration of, or otherwise with respect to, this Guaranty (“Other Taxes”). The Guarantor shall deliver to the Bank official receipts, if any, in respect of any Taxes or Other Taxes payable hereunder promptly after payment of such taxes), Taxes or Other Taxes or other evidence of payment reasonably acceptable to the Agent. The Guarantor hereby indemnifies and agrees to hold the Bank harmless from and against Taxes and Other Taxes (including, without limitation, any income taxes (Taxes and any interest and penalties imposed with respect thereto) and Excise Tax Other Taxes imposed on the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed on the Gross Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Gross Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Employee without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only any amounts payable under this Agreement (and no other Gross PaymentsParagraph 1) paid by such person, whether or not such Taxes or Other Taxes were correctly or legally asserted. Such indemnification shall be reduced. If paid within ten (10) days from the reduction date on which any such person makes written demand therefore specifying in reasonable detail the nature and amount of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionsuch Taxes or Other Taxes.

Tax gross-up. (a) Notwithstanding anything in this Agreement In the event that the aggregate of all payments or benefits made or provided to the contrary, if it shall be determined that any payments, benefits and distributions due Executive under this Agreement Section 5 and those which are otherwise payable or distributable under all other plans and programs of NFP (the “Aggregate Payment”) is determined to or for the benefit constitute a Parachute Payment, as such term is defined in Section 280G(b)(2) of the Employee relating Internal Revenue Code, NFP shall pay to the termination of the Employee’s employment in connection with a change of control of the CompanyExecutive, including a Change of Control (whether paid or payable or distributed or distributable pursuant prior to the terms of this Agreement or otherwise, including without limitation (i) payments, benefits and distributions pursuant to Section 3 of this Agreement, and (ii) deemed amounts under the Code, resulting from the acceleration of the vesting of time any stock options or other equity-based incentive award) (all such payments, benefits and distributions being referred to herein as “Gross Payments”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any interest or penalties are incurred by the Employee with respect to the excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to the Employee an additional payment (a “Gross-Up Payment”) in an amount such that after the payment by the Employee of all taxes (including any interest or penalties imposed is payable with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on the Gross-Up Aggregate Payment, an additional amount which, after the Employee retains an amount imposition of the Gross-Up Payment all income and excise taxes thereon, is equal to the Excise Tax imposed on the Gross PaymentsAggregate Payment. The determination of whether the Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this Section 5(g) shall be made by KPMG or another independent auditor (the “Auditor”) jointly selected by NFP and the Executive and paid by NFP. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of NFP or any affiliate thereof. Notwithstanding the foregoing provisions of this Section 10(a)foregoing, if it shall be determined in the event that the Employee is entitled to a Gross-Up Payment, but Auditor determines that the Gross Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that Aggregate Payment is equal to or less than 10110% of the portion product of (i) three multiplied by (ii) the Executive’s Base Amount, as such term is defined in Section 280G(b)(3) of the Gross Payments that would be treated as “parachute payments” Internal Revenue Code and the regulations issued under Section 280G of the CodeInternal Revenue Code (particularly Q. 34 of such regulations), then the amounts payable to the Employee under this Agreement shall Aggregate Payment will be reduced (but not below zero) to by the maximum minimum amount that could be paid to as will result in no portion of the Employee without giving rise Aggregate Payment being subject to the Excise Tax (Tax; provided that the “Safe Harbor Cap”), and no Gross-Up Payment payments and/or benefits to be eliminated in effecting such reduction shall be made to the Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected identified by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionExecutive.

Tax gross-up. The Republic agrees with each of the Underwriters to make all payments to the Underwriters under the Transaction Documents without withholding or deduction for or on account of any present or future taxes, duties or other governmental charges in the nature of a tax (including any interest, additions to tax or penalties) imposed by the Republic, or any political subdivision or taxing authority thereof or therein or any jurisdiction from or through which the Republic makes a payment under the Transaction Documents, each a “Taxing Jurisdiction”, unless the Republic is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Republic shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction will equal the amounts that would have been received if no withholding or deduction had been made, except to the extent that such taxes, duties or charges (a) Notwithstanding anything in this Agreement were imposed due to some connection of an Underwriter with the contrary, if it shall be determined that any payments, benefits and distributions due under this Agreement and those which are otherwise payable or distributable to or for Taxing Jurisdiction other than the benefit of the Employee relating to the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms mere entering into of this Agreement or otherwisereceipt of payments hereunder or (b) would not have been imposed but for the failure of such Underwriter to comply with any reasonable certification, including without limitation information, documentation, identification or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction if such compliance is required or imposed by law or administrative practice as a precondition to an exemption from, or reduction in, such taxes, duties or other charges, provided, that (i) paymentsany such certification, benefits information, documentation, identification, or other reporting requirements would not be materially more onerous, in form, procedure or substance, than comparable information or other reporting requirements imposed under U.S. tax law, regulation and distributions pursuant to Section 3 of this Agreementadministrative practice (such as IRS Forms X-0XXX, X-0XXX-X, X-0XXX and W-9) and (ii) deemed amounts under the Code, resulting from Republic has notified the acceleration Underwriters in writing of the vesting of any stock options such information or other equity-based incentive award) (all such paymentsreporting requirement at least 15 days before the applicable payment date. The Republic further agrees to indemnify and hold harmless the Underwriters against any documentary, benefits stamp, income, gift, gross turnover, debits and distributions being referred to herein as “Gross Payments”)credits, would be subject to capital, assets, sales, transaction or similar issue tax, duty or other governmental charge in the excise tax nature of a tax, either present or future, imposed by Section 4999 of the Code Republic or any interest political subdivision or penalties are incurred by the Employee with respect to the excise tax (such excise taxtaxing authority thereof or therein, together with including any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to the Employee an additional payment (a “Gross-Up Payment”) in an amount such that after the 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 on the Gross-Up Paymentcreation, the Employee retains an amount holding, issue and initial sale of the Gross-Up Payment equal to the Excise Tax imposed Securities, and on the Gross Payments. Notwithstanding the foregoing provisions of this Section 10(a)execution, if it shall be determined that the Employee is entitled to a Gross-Up Paymentdelivery, but that the Gross Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% performance and enforcement of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Employee without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionTransaction Documents.

Tax gross-up. (a) Notwithstanding anything in this Agreement to the contraryAny and all payments by each Guarantor hereunder, if it and any amounts on account of interest or deemed interest, shall be determined that made free and clear of and without deduction for any paymentsand all present or future taxes, benefits levies, imposts, deductions, charges or withholdings, and distributions due under this Agreement all liabilities with respect thereto, excluding taxes imposed on net income or franchise taxes of Laurus by the jurisdiction in which such person is organized or has its principal office (all such non-excluded taxes, levies, imposts, deductions, charges withholdings and those which are otherwise liabilities, collectively or individually, “Taxes”). If any Guarantor shall be required to deduct any Taxes from or in respect of any sum payable or distributable hereunder to or for the benefit of the Employee relating to the termination of the Employee’s employment in connection with a change of control of the CompanyLaurus, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, including without limitation (i) paymentsthe sum payable shall be increased by the amount (an “additional amount”) necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 9) Laurus shall receive an amount equal to the sum it would have received had no such deductions been made, benefits and distributions pursuant to Section 3 of this Agreement, and (ii) deemed amounts under such Guarantor shall make such deductions and (iii) such Guarantor shall pay the Code, resulting from the acceleration of the vesting of any stock options or other equity-based incentive award) (all such payments, benefits and distributions being referred to herein as “Gross Payments”), would be subject full amount deducted to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Employee relevant governmental authority in accordance with respect applicable law. In addition, each Guarantor agrees to the excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to the Employee an additional relevant governmental authority in accordance with applicable law any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies that arise from any payment (a “Gross-Up Payment”) in an amount such that after made hereunder or from the payment by the Employee of all taxes (including any interest execution, delivery or penalties imposed registration of, or otherwise with respect to, this Amended and Restated Guaranty (“Other Taxes”). Each Guarantor shall deliver to Laurus official receipts, if any, in respect of any Taxes or Other Taxes payable hereunder promptly after payment of such taxes), Taxes or Other Taxes or other evidence of payment reasonably acceptable to Laurus. Each Guarantor hereby indemnifies and agrees to hold Laurus harmless from and against Taxes and Other Taxes (including, without limitation, any income taxes (Taxes and any interest and penalties imposed with respect thereto) and Excise Tax Other Taxes imposed on the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed on the Gross Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Gross Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Employee without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only any amounts payable under this Agreement (and no other Gross PaymentsSection 9) paid by such person, whether or not such Taxes or Other Taxes were correctly or legally asserted. Such indemnification shall be reduced. If paid within ten (10) days from the reduction date on which any such person makes written demand therefore specifying in reasonable detail the nature and amount of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionsuch Taxes or Other Taxes.

Tax gross-up. (ai) Notwithstanding anything in this Agreement to the contrary, if it shall be determined that If any payments, payments or other benefits and distributions due under this Agreement and those which are otherwise payable or distributable any other payments or benefits received or to or for the benefit of the Employee relating to the termination of the Employee’s employment be received by Executive in connection with or as a change result of control a Change in Control of the CompanyEmployer, including a Change or Executive's termination of Control (employment, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseany other plan, including without limitation arrangement or agreement with the Employer, or any person affiliated with the Employer (i) payments, benefits and distributions pursuant to Section 3 of this Agreement, and (ii) deemed amounts under the Code, resulting from the acceleration of the vesting of any stock options or other equity-based incentive award) (all such payments, benefits and distributions being referred to herein as “Gross "Change in Control Payments”"), would will be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any interest or penalties are incurred by the Employee with respect to the excise tax of 1986, as amended (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “"Code," references to which shall be understood to include any successor statute and references to the applicable regulations under the Code as promulgated from time to time), or any comparable provision of state law or any similar tax that may hereafter be imposed ("Excise Tax”"), then the Company Employer shall pay to at the Employee an times hereinafter specified in this Section 9(f) additional payment amounts (each a “"Gross-Up Payment”") in an amount such that the net amount retained by Executive, after withholding or payment of any Excise Tax on the payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (Change in Control Payments and any interest federal, state and penalties imposed with respect thereto) local income tax and Excise Tax imposed on the Gross-Up Payment, the Employee retains an amount of upon the Gross-Up Payment shall be equal to the Excise Tax imposed on the Gross Change in Control Payments. Notwithstanding the foregoing provisions of this Section 10(a9(f), if it shall be determined that the Employee Executive is entitled to a Gross-Up Payment, but that the Gross Change in Control Payments would do not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10exceed 110% of the portion of greatest amount (the Gross Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Employee under this Agreement shall be reduced (but not below zero"Reduced Amount") to the maximum amount that could be paid to Executive such that the Employee without giving receipt of Change in Control Payments would not give rise to the any Excise Tax (the “Safe Harbor Cap”)Tax, and then no Gross-Gross- Up Payment shall be made to Executive and the Employee. The reduction of Change in Control Payments, in the amounts payable hereunder, if applicableaggregate, shall be made by reducing first reduced to an amount such that the payments under Sections 3(a)(i) and (ii), unless an alternative method receipt of reduction is elected by the Employee Change in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Control Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments give rise to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionany Excise Tax.

Tax gross-up. (a) Notwithstanding anything in this Agreement to the contrary, if it This Section 9 shall be determined that any payments, benefits and distributions due under this Agreement and those which are otherwise payable or distributable to or for the benefit of the Employee relating to the termination of the Employee’s employment in connection apply only with a change of control of the Company, including respect a Change of Ownership Control (whether paid that closes and becomes effective prior to the second anniversary of the Start Date. To the extent that no such transaction has occurred by that date, this Section 9 shall terminate. If any payment or payable or distributed or distributable benefit Executive would receive pursuant to the terms of this Agreement or otherwise, including but determined without limitation regard to any additional payment required under this Section 9, (icollectively, the "Payment") paymentswould (x) constitute a "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, benefits and distributions pursuant to Section 3 of this Agreementas amended (the "Code"), and (iiy) deemed amounts under the Code, resulting from the acceleration of the vesting of any stock options or other equity-based incentive award) (all such payments, benefits and distributions being referred to herein as “Gross Payments”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Employee payable with respect to the such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then Executive shall be entitled to receive from the Company shall pay to the Employee an additional payment (a “the "Gross-Up Payment”," and any iterative payments pursuant to this paragraph also shall be "Gross-Up Payments") in an amount such that after shall fund the payment by Executive of any Excise Tax on the Employee of Payment, as well as all income and employment taxes (including on the Gross-Up Payment, any Excise Tax imposed on the Gross-Up Payment and any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on the Gross-Up Payment. For this purpose, all income taxes will be assumed to apply to Executive at the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed on the Gross Paymentshighest marginal rate. Notwithstanding the foregoing provisions of this Section 10(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Gross Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Employee without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Any Gross-Up Payment shall be made paid to Executive, or for his benefit, within 15 days following receipt by the Company of the report of the accounting firm described below. The accounting firm engaged by the Company for general audit purposes as of the day prior to the Employee. The reduction effective date of the amounts payable hereunder, if applicable, Change of Ownership Control shall be made by reducing first perform the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reducedforegoing calculations. If the reduction accounting firm so engaged by the Company is also serving as accountant or auditor for the individual, entity or group which will control the Company upon the occurrence of a Change of Ownership Control, the Company shall appoint a nationally recognized accounting firm other than the accounting firm engaged by the Company for general audit purposes 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 Executive within thirty calendar days after the date on which such accounting firm has been engaged to make such determinations or such other time as requested by the Company or Executive. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Payment. Notwithstanding the above, in the event that the Excise Tax incurred by Executive is determined by the Internal Revenue Service ("IRS") to be greater than the amount so determined by the accounting firm engaged to make the determinations hereunder, the Company agrees to promptly make such additional payment, including interest and any tax penalties, to Executive as the accounting firm engaged to make the determinations hereunder reasonably determines in light of such IRS determination is appropriate to fulfill the parties' intent under this Section 9. Any good faith determinations of the amounts payable accounting firm made hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionfinal, binding, and conclusive upon the Company and Executive.

Tax gross-up. (ai) Notwithstanding anything in this Agreement In the event that the Executive becomes entitled to the contrary, if it shall be determined that any payments, benefits and distributions due under this Agreement and those which are otherwise payable or distributable to or for the benefit of the Employee relating to the termination of the Employee’s employment payments in connection with a change Change in Control or his termination of control employment (the "Payments"), if any of the CompanyPayments will be subject to the tax imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed) (the "Excise Tax"), including the Company shall pay to Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by him, after deduction of any Excise Tax on the Payments and any federal, state and local income tax and Excise Tax upon the payment provided for by this paragraph, shall be equal to 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, (a) any other payments or benefits received or to be received by Executive in connection with a Change of Control or his termination of employment (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseany plan, including without limitation arrangement or agreement with the Company or any person whose actions result in a Change of Control or any person affiliated with the Company or such person) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company's independent auditors, and consented to in writing by the Executive, which consent shall not be unreasonably withheld, such other payments or benefits (iin whole or in part) do not constitute parachute payments, benefits and distributions pursuant or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered before the date of the change within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax, (b) the amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (1) the total amount of the Payments or (2) the amount of excess parachute payments within the meaning of Section 3 of this Agreement280G(b)(1) (after applying clause (a), above), and (iic) deemed amounts under 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, resulting from . For purposes of determining the acceleration amount of the vesting of any stock options or other equity-based incentive award) (all such payments, benefits and distributions being referred to herein as “Gross Payments”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Employee with respect to the excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to the Employee an additional payment (a “Gross-Up Payment”) in an amount such that after the 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 on the Gross-Up Payment, the Employee retains an Executive shall be deemed to pay federal, state and local income taxes at the highest marginal rate of federal, state and local income taxation in the calendar year in which the Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of Executive's employment, he 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 equal attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross PaymentsGross-Up Payment being repaid by Executive if such repayment results in a reduction in Excise Tax and/or a federal, state and local tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code, applied by treating the period between initial payment of the Gross-Up Payment and the repayment in respect thereof as the term of the debt instrument referred to in section 1274(d)(1)(A) of the Code. Notwithstanding In the foregoing provisions event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of this Section 10(a), if it shall the termination of Executive's employment (including by reason of any payment the existence or amount of which cannot be determined that at the Employee is entitled to a time of the Gross-Up Payment), but the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable with respect to such excess) at the time that the Gross Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that of such excess is equal to or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Employee without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no finally determined. A Gross-Up Payment shall be made not later than the fifth day, or as soon thereafter as the Company in good xxxxx xxxxx practicable, following the date Executive becomes subject to payment of excise tax; provided, however, that if the Employee. The reduction amounts of such payment cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, of the amounts payable hereunder, if applicable, minimum amount of such payments and shall be made by reducing first pay the payments remainder of such payment (together with interest at the rate provided under Sections 3(a)(iSection 1274(b)(2)(B) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing ) as soon as the Gross Payments amount can be determined but no later than the thirtieth day after the date Executive becomes subject to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reducedpayment of excise tax. If In the reduction event the amount of the amounts estimated payment exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable hereunder would not result on the fifth day after demand by the Company (together with interest at the rate provided in a reduction Section 1274(b)(2)(B) of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionCode).

Tax gross-up. (i) If any of the Sellers or the Beneficial Owners incurs a greater federal, state or local income Tax liability than it would have incurred had (i) the stock of the Equity Consideration Sellers been transferred by UHC Holdings, Inc. to Xxxx Health in exchange for the Equity Consideration, (ii) the stock of the Cash Consideration Sellers been sold by the Beneficial Owners to Buyers and (iii) the Equity Interests of University Pharmacy (without the completion of the Reorganization) been sold by Xxxxxxxxx Xxxxxxx to Xxxx Pharmacy, including additional income Taxes attributable to (a) Notwithstanding anything differences in this Agreement U.S. federal income Tax rates applicable to the contrary, if it shall be determined that any payments, benefits (1) ordinary income and distributions due under this Agreement and those which are otherwise payable or distributable to or for the benefit of the Employee relating to the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, including without limitation (i) payments, benefits and distributions pursuant to Section 3 of this Agreement, short-term capital gains and (ii2) deemed amounts under the Codelong-term capital gains, resulting from the acceleration of the vesting of (b) corporate income taxes imposed upon any stock options or other equity-based incentive award) (all such payments, benefits and distributions being referred to herein as “Gross Payments”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Employee Seller with respect to the excise sale or deemed sale of its assets (including the treatment of the Equity Purchase as a sale of the assets of University Pharmacy for Tax purposes), and (c) additional state or local income Taxes imposed on any Beneficial Owner as a result of the Asset Sale or the treatment of the Equity Purchase as a sale of the assets of University Pharmacy for tax purposes (such excise tax, together with any such interest increase in income Taxes for the Sellers and penaltiesthe Beneficial Owners in the aggregate, are hereinafter collectively referred to as the “Excise TaxAdditional Taxes”), then the Company Buyers shall pay to Sellers’ Representative the Employee an additional payment (a “Gross-Up Payment”) in an amount necessary, such that after the payment all additional federal, state and local income Taxes payable by the Employee Sellers or the Beneficial Owners, as applicable, as a result 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 on the Gross-Up Paymentreceipt of the additional payment are taken into account, the Employee retains an net amount received by the Sellers and the Beneficial Owners is equal to the amount of the Gross-Up Payment equal to the Excise Tax imposed on the Gross Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Gross Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Employee without giving rise to the Excise Tax Additional Taxes (the “Safe Harbor CapTax Gross-up”), . The Additional Taxes and no the Tax Gross-Up Payment up shall be made to computed based on the Employee. The reduction allocation of the amounts payable hereunderCash Consideration and Equity Consideration as determined pursuant to Section 6.3(b) (as modified, if applicable, shall be made by reducing first a final determination with a Tax authority). The Additional Taxes and the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by Tax Gross-up agreed to between the Employee in a manner consistent with Section 409A Parties as of the Code. For purposes of reducing Closing is the Tax Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionUp Amount.

Tax gross-up. (a) Notwithstanding anything in this Agreement to In the contrary, if event it shall be determined that any payments, benefits and distributions due under this Agreement and those which are otherwise payable payment or distributable distribution of any type to or for the benefit of the Employee relating to Employee, by the termination of the Employee’s employment in connection with a change of Company, any Affiliate, any person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company’s assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, including a Change as amended (the “Code”), and the regulations thereunder) or any Affiliate of Control (such person, whether paid or payable or distributed or distributable pursuant to any of the terms of this Agreement or otherwise, including without limitation otherwise (i) payments, benefits and distributions pursuant to Section 3 of this Agreement, and (ii) deemed amounts under the Code, resulting from the acceleration of the vesting of any stock options or other equity-based incentive award) (all such payments, benefits and distributions being referred to herein as “Gross Total Payments”), would is or will be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Employee with respect to the such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company Employee shall pay be entitled to the Employee receive an additional payment (a “Gross-Up Payment”) in an amount such that after the payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, including any income taxes (and any interest and penalties tax, employment tax or Excise Tax, imposed with respect thereto) and Excise Tax imposed on upon the Gross-Gross Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed on upon the Gross Total Payments. Notwithstanding the foregoing provisions of this Section 10(a)All mathematical determinations, if it shall be determined that the Employee is entitled and all determinations as to a Gross-Up Payment, but that the Gross Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% whether any of the portion of the Gross Total Payments that would be treated as are “parachute payments” under (within the meaning of Section 280G of the Code), then that are required to be made under this Section including determinations as to whether a Gross-Up Payment is required, the amount of such Gross-Up Payment and amounts payable relevant to the Employee under last sentence of this Agreement Section, shall be reduced made by an independent accounting firm selected by the Employee from among the five (but not below zero5) largest accounting firms in the United States (the “Accounting Firm”), which shall provide its determination (the “Determination”), together with detailed supporting calculations regarding the amount of any Gross-Up Payment and any other relevant matter, both to the maximum amount Company and the Employee by no later than ten (10) days following the Termination Date, if applicable, or such earlier time as is requested by the Company or the Employee (if the Employee reasonably believes that could any of the Total Payments may be subject to the Excise Tax). If the Accounting Firm determines that no Excise Tax is payable by the Employee, it shall furnish the Employee and the Company with a written statement that such Accounting Firm has concluded that no Excise Tax is payable (including the reasons therefor) and that the Employee has substantial authority not to report any Excise Tax on his or her federal income tax return. If a Gross-Up Payment is determined to be payable, it shall be paid to the Employee without giving rise within twenty (20) days after the Determination (and all accompanying calculations and other material supporting the Determination) is delivered to the Excise Tax Company by the Accounting Firm. Any determination by the Accounting Firm shall be binding upon the Company and the Employee, absent manifest error. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments not made by the Company should have been made (the “Safe Harbor CapUnderpayment”), and no or that Gross-Up Payment Payments will have been made by the Company which should not have been made (“Overpayments”). In either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Underpayment, the amount of such Underpayment shall be made promptly paid by the Company to or for the benefit of the Employee. The reduction In the case of an Overpayment, the Employee shall, at the direction and expense of the amounts payable hereunderCompany, if applicabletake such steps as are reasonably necessary (including the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, the Company, and otherwise reasonably cooperate with the Company to correct such Overpayment, provided, however, that (i) the Employee shall not in any event be made by reducing first obligated to return to the payments under Sections 3(a)(i) Company an amount greater than the net after-tax portion of the Overpayment that he or she has retained or has recovered as a refund from the applicable taxing authorities and (ii), unless an alternative method of reduction is elected by the Employee ) this provision shall be interpreted in a manner consistent with Section 409A the intent of Section, which is to make the Employee whole, on an after-tax basis, from the application of the Code. For purposes Excise Tax, it being understood that the correction of reducing an Overpayment may result in the Gross Payments Employee repaying to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If Company an amount which is less than the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionOverpayment.

Tax gross-up. (a) Notwithstanding anything in this Agreement to the contrarycontrary herein, if it shall be determined that any payments, benefits and distributions due (i) MEDINET redomiciles or assigns its rights or obligations under this Agreement and those which are outside of Japan, (ii) as a result of such redomiciliation or assignment, MEDINET (or its assignee) is required by Applicable Law to withhold taxes, or such redomiciliation or assignment results in the imposition of Indirect Taxes that were not otherwise applicable, from or in respect of any amount payable or distributable to or for the benefit of the Employee relating to the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, including without limitation (i) payments, benefits and distributions pursuant to Section 3 of under this Agreement, and (iiiii) deemed such withholding taxes or Indirect Taxes exceed the amount of withholding taxes or Indirect Taxes that would have been applicable but for such redomiciliation or assignment, then any such amount payable to Histogenics pursuant to this Agreement shall be increased to take into account such withholding taxes or Indirect Taxes as may be necessary so that, after making all required withholdings (including withholdings on the additional amounts payable) and/or paying such Indirect Taxes, as the case may be, Histogenics receives an amount equal to the sum it would have received had no such increased withholding been made and no such Indirect Taxes had been imposed. The obligation to pay additional amounts pursuant to the preceding sentence shall not apply, however, to the extent such increased withholding tax or Indirect Taxes would not have been imposed but for the assignment by Histogenics of its rights or obligations under this Agreement or the Code, resulting from the acceleration redomiciliation of Histogenics outside of the vesting United States, to the extent such assignment or redomiciliation occurs after the redomiciliation or assignment by MEDINET described in the first sentence of this Section 5.10(b). To the extent Histogenics receives additional amounts and its Affiliates, taken as a whole, actually realize an overall reduction in cash taxes otherwise due (determined on a with and without basis and taking into account only the taxes required to be withheld under Applicable Law from any stock options Payments made to Histogenics’ Affiliates) as a result of a foreign tax credit or other equity-based incentive awarda tax refund attributable to withholding taxes in respect of which Histogenics received additional amounts pursuant to this Section 5.10(b) (all such paymentsreduction, benefits and distributions being referred to herein as a “Gross PaymentsTax Benefit”), would Histogenics shall ****. The foregoing sentence shall not be subject construed to the excise require Histogenics to make available its tax imposed by returns to MEDINET. Furthermore, Histogenics and its Affiliates agree not to take any action ****. Solely for purposes of this Section 4999 5.10(b), a Party’s “domicile” shall include its jurisdiction of incorporation or tax residence and a “redomiciliation” shall include a reincorporation or other action resulting in a change in tax residence of the Code applicable Party or any interest or penalties are incurred by its assignee. GDSVF&H\ ****Certain information has been omitted and filed separately with the Employee Commission. Confidential treatment has been requested with respect to the excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to the Employee an additional payment (a “Grossomitted portions. US-Up Payment”) in an amount such that after the 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 on the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed on the Gross Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Gross Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Employee without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.DOCS\97178923.5

Tax gross-up. Notwithstanding any other provisions of this Agreement, in the event that (ai) Notwithstanding anything in this Agreement to any payment or distribution by the contrary, if it shall be determined that any payments, benefits and distributions due under this Agreement and those which are otherwise payable or distributable Company to or for the Executive’s benefit of the Employee relating to the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseany other plan, including without limitation (i) paymentsarrangement or agreement with the Company, benefits and distributions pursuant to Section 3 of this Agreement, and (ii) deemed amounts under any person whose actions result in a Change in Control or any person affiliated with the Code, resulting from the acceleration of the vesting of any stock options Company or other equity-based incentive awardsuch person) (all such paymentspayments and distributions, including the severance payments and benefits and distributions being referred to herein as provided for in Section 9 hereof (the “Gross Severance Payments”), being hereinafter called (“Total Payments”) would be subject (in whole or part) to the excise tax imposed by under Section 4999 of the Code, or any successor provision enacted under the Code or any interest or penalties are incurred by the Employee Executive with respect to the such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)) and (ii) the amount of such Total Payments subject to such Excise Tax exceeds $50,000, then the Company shall pay to the Employee Executive an additional cash payment (a the “Tax Gross-Up”) so that after receipt of such Tax Gross-Up, the payment of any additional federal, state and local income taxes on such Tax Gross-Up Payment”) in an amount such that after and the payment by the Employee of all taxes (including any interest or penalties imposed with respect to Excise Taxes, Executive shall receive such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on the Gross-Up Payment, the Employee retains an net amount of the Gross-Up Payment Total Payments equal to the amount that Executive would have received if no Excise Tax imposed on was due. If the Gross Payments. Notwithstanding the foregoing provisions amount of this Section 10(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Gross Total Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Codedoes not exceed $50,000, then the amounts payable to Tax-Gross-Up shall not be paid and the Employee under this Agreement Severance Payments shall be reduced (but not below if necessary, to zero) to the maximum amount extent necessary so that could be paid to no portion of the Employee without giving rise Total Payments is subject to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionTax.

Tax gross-up. (a) Notwithstanding anything in this Agreement herein to the contrary, if it shall be is determined by the Company on or prior to the date the applicable payments and/or benefits are paid or thereafter by the Internal Revenue Service (the “IRS”) pursuant to an IRS audit of the Executive’s federal income tax return(s) (an “Audit”), that any payments, benefits and distributions due payment or benefit provided to the Executive under this Agreement and those which are otherwise payable or distributable to or for the benefit of the Employee relating to the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, including without limitation (i) payments, benefits and distributions pursuant to Section 3 of this Agreement, and (ii) deemed amounts under the Code, resulting from the acceleration of the vesting of any stock options or other equity-based incentive award) (all such payments, benefits and distributions being referred to herein as “Gross Payments”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, or any interest or penalties are incurred by the Employee with respect to the such excise tax (such excise tax, together with any such interest and penaltiesor penalties thereon, are hereinafter collectively is herein referred to as the “Excise Tax”), then the Company shall pay (either directly to the Employee IRS as tax withholdings or to the Executive as a reimbursement of any amount of taxes, interest and penalties paid by the Executive to the IRS) both the Excise Tax and an additional cash payment (a “Gross-Up Payment”) in an amount such that after will place the Executive in the same after-tax economic position that the Executive would have enjoyed if the payment by or benefit had not been subject to 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 on the Gross-Up Payment, the Employee retains an Tax. The amount of the Gross-Up Payment equal to shall be calculated by the Company’s regular independent auditors based on the amount of the Excise Tax imposed on paid by the Gross Payments. Notwithstanding Company as determined by the foregoing provisions of this Section 10(a)Company or the IRS, if it shall be determined and assuming that the Employee Executive pays taxes in the highest marginal tax brackets. If the amount of the Excise Tax determined by the IRS is entitled to a greater than an amount previously determined by the Company, the Company’s auditors shall recalculate the amount of the Gross-Up Payment. The Executive shall promptly notify the Company of any IRS assertion during an Audit that an Excise Tax is due with respect to any payment or benefit, but the Executive shall be under no obligation to defend against such claim by the IRS unless the Company requests, in writing, that the Gross Payments would not be subject Executive undertake the defense of such IRS claim on behalf of the Company and at the Company’s sole expense. In such event, the Company may elect to control the conduct to a final determination through counsel of it own choosing and at its sole expense, of any audit, administrative or judicial proceeding involving an asserted liability relating to the Excise Tax if Tax, and the Gross Payments were reduced by an amount that is equal to Executive shall not settle, compromise or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Employee without giving rise to the concede such asserted Excise Tax (and the “Safe Harbor Cap”), and no Gross-Up Payment Executive shall be made to cooperate with the Employee. The reduction Company in each phase of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionany contest.

Tax gross-up. The Total Consideration shall be increased (ain cash only) Notwithstanding anything in this Agreement as much as shall be necessary so that after actual payment of all (and solely) New York City and State Taxes by the Company or any of its subsidiaries imposed by any Governmental Authority as a result of the Transaction the Stockholders of the Company receive an amount equal to the contrary, if it shall be determined that any payments, benefits and distributions due under this Agreement and those which are otherwise payable or distributable to or sum they would have received had Parent purchased the stock of the Company directly from the stockholders of the Company for the benefit of same Total Consideration (the Employee relating to "GROSS UP AMOUNT"); provided that the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, including without limitation (i) payments, benefits and distributions pursuant to Section 3 of this Agreement, and (ii) deemed amounts under the Code, resulting from the acceleration of the vesting of any stock options or other equity-based incentive award) (all such payments, benefits and distributions being referred to herein as “Gross Payments”), would foregoing shall be subject to the excise tax imposed by Section 4999 following: (a) the Gross Up Amount shall in no event exceed US $1,780,000 plus five percent (5%) of the Code amount by which the Fortent Americas Allocation (as defined herein) exceeds US $40,000,000; (b) for both New York State Corporate Franchise Tax and for New York City General Corporation Tax purposes, the Company will not file combined reports with the Acquired Companies in the year of the sale of the Shares of the Acquired Companies and that accordingly, the Tax Returns that the Company will file with the State of New York and the City of New York will report the gain or any interest loss on the sale of the Shares the Acquired Companies as gain or penalties are incurred by loss from the Employee with respect disposition of subsidiary capital; (c) as promptly as practicable following the Closing, the Company and the stockholders shall cause the Company to the excise tax liquidate for U.S. Tax purposes; (such excise tax, together with any such interest d) Parent and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay jointly control any Tax audit or other proceeding relating to the Employee an additional Taxes which results in payment (a “Gross-Up Payment”) in an amount such that after the 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 on the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed on the Gross Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Gross Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% of the portion of the Gross Payments that would be treated Up Amount; (e) the Company and the stockholders shall provide to Parent such cooperation and information, as “parachute payments” under Section 280G and to the extent reasonably requested, in connection with the foregoing; (f) neither the Company nor Parent may settle, compromise or pay any such excess Tax, without the prior written consent of the Codeother party; and (g) in the event that the Total Consideration is increased as a result of this Section, then the amounts payable from such Gross Up Amount to the Employee under this Agreement be paid shall be reduced (but not below zero) to deducted the maximum amount that could be Tax Planning Expenses previously paid to the Employee without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionBuyers.

Tax gross-up. Notwithstanding any other provisions of this Agreement, in the event that (ai) Notwithstanding anything in this Agreement to any payment or distribution by the contrary, if it shall be determined that any payments, benefits and distributions due under this Agreement and those which are otherwise payable or distributable Company to or for the Executive’s benefit of the Employee relating to the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseany other plan, including without limitation (i) paymentsarrangement or agreement with the Company, benefits and distributions pursuant to Section 3 of this Agreement, and (ii) deemed amounts under any person whose actions result in a Change in Control or any person affiliated with the Code, resulting from the acceleration of the vesting of any stock options Company or other equity-based incentive awardsuch person) (all such paymentspayments and distributions, including the severance payments and benefits and distributions being referred to herein as provided for in Section 10 hereof (the “Gross Severance Payments”), being hereinafter called (“Total Payments”) would be subject (in whole or part) to the excise tax imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision enacted under the Code or any interest or penalties (to the extent permitted under Treasury Regulation Section 1.409A-3(i)(1)(v)) are incurred by the Employee Executive with respect to the such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)) and (ii) the amount of such Total Payments subject to such Excise Tax exceeds $50,000, then the Company shall pay to the Employee Executive an additional cash payment (a the “Tax Gross-Up”) so that after receipt of such Tax Gross-Up, the payment of any additional federal, state and local income taxes on such Tax Gross-Up Payment”) in an amount such that after and the payment by the Employee of all taxes (including any interest or penalties imposed with respect to Excise Taxes, Executive shall receive such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on the Gross-Up Payment, the Employee retains an net amount of the Gross-Up Payment Total Payments equal to the amount that Executive would have received if no Excise Tax imposed on was due. If the Gross Payments. Notwithstanding the foregoing provisions amount of this Section 10(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Gross Total Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Codedoes not exceed $50,000, then the amounts payable to Tax-Gross-Up shall not be paid and the Employee under this Agreement Severance Payments shall be reduced (but not below if necessary, to zero) to the maximum amount extent necessary so that could be paid to no portion of the Employee without giving rise Total Payments is subject to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionTax.

Tax gross-up. (a) Notwithstanding anything in any other provision of this Agreement or any other plan, arrangement or agreement to the contrary, if it shall any of the payments or benefits provided or to be determined that any payments, benefits and distributions due under this Agreement and those which are otherwise payable provided by the Company or distributable its affiliates to the Employee or for the benefit of the Employee relating to the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable benefit pursuant to the terms of this Agreement or otherwise, including without limitation otherwise (i“Covered Payments”) payments, benefits and distributions pursuant to constitute parachute payments (“Parachute Payments”) within the meaning of Section 3 of this Agreement, and (ii) deemed amounts under the Code, resulting from the acceleration 280G of the vesting of any stock options or other equity-based incentive award) (all such payments, benefits Code and distributions being referred to herein as “Gross Payments”), would will be subject to the excise tax imposed by under Section 4999 of the Code (or any successor provision thereto) or any interest or penalties are incurred by the Employee with respect to the such excise tax (such excise taxcollectively, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to the Employee, no later than the time the Excise Tax is required to be paid by the Employee or withheld by the Company, an additional payment amount (a the “Gross-Up up Payment”) in an amount such that after equal to the payment sum of the Excise Tax payable by the Employee, plus the amount necessary to put the Employee of in the same after-tax position (taking into account any and all applicable federal, state, local and foreign income, employment and excise taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, the Excise Tax and any income and employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on the Gross-Up up Payment)) that the Employee would have been in if the Employee had not incurred any tax liability under Section 4999 of the Code. The determination of whether a Gross-up Payment will be required, and of the amount of such Gross-up Payment, shall initially be made (at the Company’s expense) by a nationally recognized registered public accounting firm reasonably acceptable to the Company and the Employee retains an amount prior to the time the Excise Tax is required to be paid by the Employee or withheld by the Company, and shall be made applying the assumptions that the Employee will pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the Gross-Up up Payment equal is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s residence at the time. In light of the uncertainty in applying Sections 280G and 4999 of the Code, if it is subsequently determined that the Gross-up Payment is not sufficient to put the Employee in the same after-tax position (taking into account any and all applicable federal, state, local and foreign income, employment and excise taxes (including the Excise Tax and such taxes imposed on the Gross PaymentsGross-up Payment)) that the Employee would have been in if the Employee had not incurred the Excise Tax, then the Company shall promptly pay to or for the benefit of the Employee such additional amounts necessary to put the Employee in the same after-tax position that the Employee would have been in if the Excise Tax had not been imposed. Notwithstanding In the foregoing provisions event that a written ruling of this Section 10(a)the Internal Revenue Service (“IRS”) is obtained by or on behalf of the Company or the Employee, if it shall be determined which provides that the Employee is not required to pay, or is entitled to a refund with respect to, all or a portion of the Excise Tax, then the Employee shall reimburse the Company in an amount equal to the Gross-Up up Payment, but that less any amounts which remain payable by or are not refunded to the Gross Payments would not be subject Employee, within thirty (30) days of the date of the IRS determination or the date the Employee receives the refund, as applicable. The Employee and the Company shall reasonably cooperate with each other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for the Excise Tax; provided that, if the Company decides to contest a claim by the IRS relating to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the CodeTax, then the amounts payable to Company shall bear and pay directly or indirectly all costs and expenses (including any additional interest and penalties and any legal and accounting fees and expenses) incurred in connection with such action and shall indemnify and hold the Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Employee without giving rise to the harmless, on an after-tax basis, for any Excise Tax (the “Safe Harbor Cap”)or income tax, including interest and no Gross-Up Payment shall be made to the Employee. The reduction penalties with respect thereto, imposed as a result of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionCompany’s action.”

Tax gross-up. (a) Notwithstanding anything in this Agreement to Any and all payments by the contraryGuarantor hereunder, if it and any amounts on account of interest or deemed interest, shall be determined that made free and clear of and without deduction for any paymentsand all present or future taxes, benefits levies, imposts, deductions, charges or withholdings, and distributions due under this Agreement all liabilities with respect thereto, excluding taxes imposed on net income or franchise taxes of Laurus by the jurisdiction in which such person is organized or has its principal office (all such non-excluded taxes, levies, imposts, deductions, charges withholdings and those which are otherwise liabilities, collectively or individually, “Taxes”). If any Guarantor shall be required to deduct any Taxes from or in respect of any sum payable or distributable hereunder to or for the benefit of the Employee relating to the termination of the Employee’s employment in connection with a change of control of the CompanyLaurus, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, including without limitation (i) paymentsthe sum payable shall be increased by the amount (an “additional amount”) necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 11) Laurus shall receive an amount equal to the sum it would have received had no such deductions been made, benefits and distributions pursuant to Section 3 of this Agreement, and (ii) deemed amounts under such Guarantor shall make such deductions and (iii) such Guarantor shall pay the Code, resulting from the acceleration of the vesting of any stock options or other equity-based incentive award) (all such payments, benefits and distributions being referred to herein as “Gross Payments”), would be subject full amount deducted to the excise tax imposed by Section 4999 of relevant governmental authority in accordance with applicable law. In addition, the Code or any interest or penalties are incurred by the Employee with respect Guarantor agrees to the excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to the Employee an additional relevant governmental authority in accordance with applicable law any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies that arise from any payment (a “Gross-Up Payment”) in an amount such that after made hereunder or from the payment by the Employee of all taxes (including any interest execution, delivery or penalties imposed registration of, or otherwise with respect to, this Amended and Restated Guaranty (“Other Taxes”). The Guarantor shall deliver to Laurus official receipts, if any, in respect of any Taxes or Other Taxes payable hereunder promptly after payment of such taxes), Taxes or Other Taxes or other evidence of payment reasonably acceptable to Laurus. The Guarantor hereby indemnifies and agrees to hold Laurus harmless from and against Taxes and Other Taxes (including, without limitation, any income taxes (Taxes and any interest and penalties imposed with respect thereto) and Excise Tax Other Taxes imposed on the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed on the Gross Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Gross Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Employee without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only any amounts payable under this Agreement (and no other Gross PaymentsSection 11) paid by such person, whether or not such Taxes or Other Taxes were correctly or legally asserted. Such indemnification shall be reduced. If paid within ten (10) days from the reduction date on which any such person makes written demand therefore specifying in reasonable detail the nature and amount of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionsuch Taxes or Other Taxes.

Tax gross-up. Notwithstanding any other provisions of this Agreement, in the event that (ai) Notwithstanding anything in this Agreement to any payment or distribution by the contrary, if it shall be determined that any payments, benefits and distributions due under this Agreement and those which are otherwise payable or distributable Company to or for the Executive’s benefit of the Employee relating to the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseany other plan, including without limitation (i) paymentsarrangement or agreement with the Company, benefits and distributions pursuant to Section 3 of this Agreement, and (ii) deemed amounts under any person whose actions result in a Change in Control or any person affiliated with the Code, resulting from the acceleration of the vesting of any stock options Company or other equity-based incentive awardsuch person) (all such paymentspayments and distributions, including the severance payments and benefits and distributions being referred to herein as provided for in Section 10 hereof (the “Gross Severance Payments”), being hereinafter called (“Total Payments”) would be subject (in whole or part) to the excise tax imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision enacted under the Code or any interest or penalties are incurred by the Employee Executive with respect to the such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)) and (ii) the amount of such Total Payments subject to such Excise Tax exceeds $50,000, then the Company shall pay to the Employee Executive an additional cash payment (a the “Tax Gross-Up”) so that after receipt of such Tax Gross-Up, the payment of any additional federal, state and local income taxes on such Tax Gross-Up Payment”) in an amount such that after and the payment by the Employee of all taxes (including any interest or penalties imposed with respect to Excise Taxes, Executive shall receive such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on the Gross-Up Payment, the Employee retains an net amount of the Gross-Up Payment Total Payments equal to the amount that Executive would have received if no Excise Tax imposed on was due. If the Gross Payments. Notwithstanding the foregoing provisions amount of this Section 10(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Gross Total Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Codedoes not exceed $50,000, then the amounts payable to Tax-Gross-Up shall not be paid and the Employee under this Agreement Severance Payments shall be reduced (but not below if necessary, to zero) to the maximum amount extent necessary so that could be paid to no portion of the Employee without giving rise Total Payments is subject to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionTax.

Tax gross-up. (a) Notwithstanding anything in Although the parties intend for this Agreement Merger to qualify as a tax-free reorganization under the provisions of Section 368(a) of the Code, if for any reason any portion of the Merger Consideration is taxable to any of the SHAREHOLDERS (such Taxes are referred to as the "Merger Tax"), TRC shall pay an additional amount (the "Additional Amount") to the contrarySHAREHOLDERS so that, if it shall be determined that after payment of any payments, benefits and distributions due under this Agreement and those which are otherwise payable or distributable Taxes attributable to or for the benefit receipt of the Employee relating Additional Amount, the SHAREHOLDER has a net amount equal to the termination of the Employee’s employment in connection with a change of control of the Company, including a Change of Control (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, including without limitation sum of: (i) paymentsthe amount of the Merger Tax; (ii) any interest and penalties due with respect of the Merger Tax; (iii) any reasonable costs incurred in contesting the Merger Tax or the interest and penalties thereon; (iv) any reasonable costs incurred by the SHAREHOLDER in collecting the Additional Amount; and (v), benefits if a SHAREHOLDER pays an item described in clauses (i) through (iv) prior to the receipt of the Additional Amount, then an interest amount computed at the rate of 8% per annum on such payment from the date of the payment until the SHAREHOLDER received the Additional Amount. TRC has the exclusive right in its sole discretion to contest the Merger Tax and distributions pursuant the interest and penalties thereon on behalf of any SHAREHOLDER. Notwithstanding the foregoing, TRC shall not be responsible for paying any costs incurred by any SHAREHOLDER in contesting the Merger Tax and the interest and penalties thereon unless (i) such SHAREHOLDER issued TRC prior written notice of such SHAREHOLDER'S intent to Section 3 contest the Merger Tax and the interest and penalties thereon (within 30 days of this Agreement, such SHAREHOLDER'S receipt of a taxing authority's notice contesting the tax treatment of the Merger) and (ii) deemed amounts under TRC did not issue such SHAREHOLDER a written notice within 30 days of receiving such SHAREHOLDER'S notice that TRC will contest the Code, resulting from Merger Tax and the acceleration of the vesting of any stock options or other equity-based incentive award) (all such payments, benefits and distributions being referred to herein as “Gross Payments”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Employee with respect to the excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to the Employee an additional payment (a “Gross-Up Payment”) in an amount such that after the 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 thereon on the Gross-Up Payment, the Employee retains an amount behalf of the Gross-Up Payment equal to the Excise Tax imposed on the Gross Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Gross Payments would not be subject to the Excise Tax if the Gross Payments were reduced by an amount that is equal to or less than 10% of the portion of the Gross Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Employee without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 3(a)(i) and (ii), unless an alternative method of reduction is elected by the Employee in a manner consistent with Section 409A of the Code. For purposes of reducing the Gross Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Gross Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Gross Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provisionsuch SHAREHOLDER.