Common use of Certain Payments Clause in Contracts

Certain Payments. (a) In the event that any payment or benefit received or to be received by Executive pursuant to this Agreement or otherwise (“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 8, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. (b) Unless the Company and Executive otherwise agree in writing, any determination required under this Section 8 shall be made by an independent advisor designated by the Company and reasonably acceptable to Executive (“Independent Advisor”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur in connection with any calculations contemplated by this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (ai) In Anything herein to the contrary notwithstanding, in the event that it is determined that any payment or benefit received distribution by the Company to or for the Executive's benefit, whether paid or payable or distributed or distributable pursuant to be received by Executive the terms hereof, including but not limited to Section 7(l), or otherwise, other than any payment pursuant to this Agreement or otherwise Section 7(m), (“Payments”) a "Payment"), would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, Code or any comparable federal, state, local interest or foreign penalties with respect to such excise tax (“such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax”"), then, subject to then the provisions of this Section 8, such Payments Executive shall be either entitled to receive, within fifteen (A15) provided business days following the determination described in full pursuant to Section 7(m)(ii) below, an additional payment ("Excise Tax Adjustment Payment") in an amount such that after payment by the terms Executive of this Agreement all applicable Federal, state and local taxes (computed at the maximum marginal rates and including any interest or any other applicable agreement, or (B) provided as penalties imposed with respect to such lesser extent which would result in no portion taxes), including any Excise Tax, imposed upon the Excise Tax Adjustment Payment, the Executive shall retain an amount of such Payments being subject the Excise Tax Adjustment Payment equal to the Excise Tax (“Reduced Amount”), whichever of imposed upon the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise TaxPayments. (bii) Unless the Company and Executive otherwise agree in writing, any determination All determinations required to be made under this Section 8 shall be made by an independent advisor designated by the Company and reasonably acceptable to Executive (“Independent Advisor”7(m), whose determination shall be conclusive and binding upon Executive including whether Excise Tax Adjustment Payment is required and the Company for all purposes. For purposes amount of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur in connection with any calculations contemplated by this Section. Any reduction of the Payments payable hereunder, if applicableExcise Tax Adjustment Payment, shall be made by first reducing Deloitte & Touche LLP, or such other accounting firm as the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled Company may designate prior to a Reduced Amount pursuant Change of Control, which shall provide to Section 8(athe Company and the Executive detailed supporting calculations within fifteen (15) andbusiness days of the date of the Executive's termination of employment. Except as hereinafter provided, notwithstanding any reduction described in this Section 8 (determination by Deloitte & Touche LLP, or in such other accounting firm as the absence Company may designate prior to a Change of any such reduction)Control, shall be binding upon the Internal Revenue Service (“IRS”) determines that Executive is liable for Company and the Excise Tax as Executive. As a result of the receipt uncertainty in the application of one Section 4999 of the Code at the time of the initial determination hereunder, it is possible that (x) Excise Tax Adjustment Payments which should have been made will not have been made by the Company ("Underpayment"), or more Payments(y) certain Payments will have been made which should not have been made ("Overpayment"), then Executive consistent with the calculations required to be made hereunder. In the event of an Underpayment, the Company shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be obligated promptly paid by the Company to surrender or pay back for the Executive's benefit. In the event that the Executive discovers that an Overpayment shall have occurred, the amount thereof shall be promptly repaid to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (a) In the event that any payment or benefit received or to be received by the Executive pursuant to this Agreement or otherwise (“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 8, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by the Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. (b) Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 8 shall be made by an independent advisor designated by the Company and reasonably acceptable to the Executive (“Independent Advisor”), whose determination shall be conclusive and binding upon the Executive and the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that the Executive pays all taxes at the highest marginal rate. The Company and the Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur in connection with any calculations contemplated by this Section. Any The reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 77(d)(iv), second by reducing the Pro Rata Bonus and the Prior Year Bonus, third by reducing COBRA reimbursement under Section 7(d)(v) and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A.the Executive. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) andIf, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that the Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then the Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) 120 days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that the Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by the Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, the Executive shall pay the Excise Tax.

Certain Payments. (a) In the event that any payment or benefit received or to be received by the Executive pursuant to this Agreement or otherwise (“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 8, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by the Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. (b) Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 8 shall be made by an independent advisor designated by the Company and reasonably acceptable to the Executive (“Independent Advisor”), whose determination shall be conclusive and binding upon the Executive and the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that the Executive pays all taxes at the highest marginal rate. The Company and the Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur in connection with any calculations contemplated by this Section. Any The reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement 7(d)(ii) and lastly then by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A.the Executive. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) andIf, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that the Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then the Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) 120 days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that the Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by the Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, the Executive shall pay the Excise Tax.

Certain Payments. (a) In If any of the event that any payment payments or benefit benefits received or to be received by Executive in connection with a Change in Control or Executive's termination of employment, whether or not pursuant to this Agreement (such payments or otherwise benefits, excluding the Gross-Up Payment, as hereinafter defined, shall hereinafter be referred to as the `Total Payments') will be subject to an excise tax as provided for in Section 4999 of the Internal Revenue Code (“the `Code') (the `Excise Tax'), the Company shall pay to Executive an additional amount (the `Gross-Up Payment') such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments”; provided, however, that if the Total Payments are less than 360% of the Executive's Base Amount, as defined in section 280G(b)(3) would of the Code, the Executive shall not be entitled to the Gross-Up Payment, and the Total Payments shall be reduced as provided for in Section 10(d) below. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) constitute a “all of the Total Payments shall be treated as `parachute payment” payments' (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (`Tax Counsel') reasonably acceptable to Executive and selected by the accounting firm acting as the `Auditor', as defined below, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all `Excess parachute payments' within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence or, if higher, in the state and locality of Executive's principal place of employment, on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 10), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (including that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction) plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) If the Total Payments would constitute an Excess parachute payment, but are less than 360% of the Base Amount, such payments shall be reduced to the largest amount that may be paid to the Executive without the imposition of the Excise Tax or the disallowance as deductions to the Company under Section 280G of the Code and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 8, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Taxpayments. (be) Unless the Company and Executive otherwise agree in writing, any determination required All determinations under this Section 8 10 shall be made by an independent advisor designated a nationally recognized accounting firm selected by the Company and reasonably acceptable to Executive (“Independent Advisor”the `Auditor'), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur cooperate in connection with any calculations contemplated by good faith in making such determinations and in providing the necessary information for this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amountpurpose.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (a) In If any of the event that any payment payments or benefit benefits received or to be received by Executive in connection with a Change in Control or Executive's termination of employment, whether or not pursuant to this Agreement (such payments or otherwise (“Payments”benefits, excluding the Gross-Up Payment, as hereinafter defined, shall hereinafter be referred to as the "TOTAL PAYMENTS") would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code and (ii) but for this section, will be subject to the an excise tax imposed by as provided for in Section 4999 of the Internal Revenue Code (the "CODE") (the "EXCISE TAX"), the Company shall pay to Executive an additional amount (the "GROSS-UP PAYMENT") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments; provided, however, that if the Total Payments are less than 360% of the Executive's Base Amount, as defined in section 280G(b)(3) of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject the Executive shall not be entitled to the provisions of this Section 8Gross-Up Payment, such and the Total Payments shall be either reduced as provided for in Section 10(d) below. (Ab) provided in full pursuant to For purposes of determining whether any of the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Total Payments being will be subject to the Excise Tax and the amount of such Excise Tax, (“Reduced Amount”), whichever i) all of the foregoing amountsTotal Payments shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, taking into account in the applicable federalopinion of tax counsel ("TAX COUNSEL") reasonably acceptable to Executive and selected by the accounting firm acting as the "Auditor", stateas defined below, local and foreign incomesuch payments or benefits (in whole or in part) do not constitute parachute payments, employment and other taxes and including by reason of section 280G(b)(4)(A) of the Code, (ii) all "Excess parachute payments" within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax (includingunless, without limitation, any interest or penalties on such taxes), results in the receipt by Executiveopinion of Tax Counsel, on an after-tax basis, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4)(B) of the greatest amount Code) in excess of payments and benefits provided for hereunder the Base Amount allocable to such reasonable compensation, or otherwise, notwithstanding that all or some portion of such Payments may be are otherwise not subject to the Excise Tax. , and (biii) Unless the Company and Executive otherwise agree in writing, value of any determination required under this Section 8 noncash benefits or any deferred payment or benefit shall be made by an independent advisor designated determined by the Company Auditor in accordance with the principles of sections 280G(d)(3) and reasonably acceptable to Executive (“Independent Advisor”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 4) of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur in connection with any calculations contemplated by this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.For

Certain Payments. (a) In the event that If any payment or benefit benefits received or to be received by Executive in connection with or contingent on a change in ownership or control, within the meaning defined in Section 280G of the Internal Revenue Code (the "CODE") (or any successor provision thereto), whether or not in connection with Executive's termination of employment, and whether or not pursuant to this Agreement (such payments or otherwise benefits, excluding the Gross-Up Payment, as hereinafter defined, shall hereinafter be referred to as the "TOTAL PAYMENTS") will be subject to an excise tax as provided for in Section 4999 of the Code (“the "EXCISE TAX"), the Company shall pay to Executive an additional amount no later than the due date for Executive's tax return with respect to such Excise Tax (the "GROSS-UP PAYMENT") such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments”; provided, however, that if the Total Payments are less than 360% of the Executive's Base Amount, as defined in Section 280G(b)(3) would of the Code, the Executive shall not be entitled to the Gross-Up Payment, and the Total Payments shall be reduced as provided for in Section 10(d) below. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) constitute a “all of the Total Payments shall be treated as "parachute payment” payments" (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("TAX COUNSEL") reasonably acceptable to Executive and selected by the accounting firm acting as the "Auditor", as defined below, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence or, if higher, in the state and locality of Executive's principal place of employment, on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 10), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (including that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Executive with respect to such excess) at the time that the amount of such excess is finally determined. Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) If the Total Payments would constitute an "excess parachute payment", but are less than 360% of the Base Amount, such payments shall be reduced to the largest amount that may be paid to the Executive without the imposition of the Excise Tax or the disallowance as deductions to the Company under Section 280G of the Code and (ii) but for this section, be subject of any such payments. Unless Executive shall have given prior written notice to the excise tax imposed Company specifying a different order, the Company shall reduce or eliminate the payments or benefits by Section 4999 first reducing or eliminating the portion of the Codepayments or benefits that are not payable in cash and then by reducing or eliminating cash payments, any successor provisionsin each case, in reverse chronological order, starting with payments or any comparable federal, state, local or foreign excise tax benefits that are to be paid farthest in time from the applicable determination of the Auditor (“Excise Tax”as defined below), then, subject . Any written notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of this Section 8any plan, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement agreement or any other applicable agreement, or (B) provided as arrangement governing Executive's entitlement and rights to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest payments or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Taxbenefits. (be) Unless the Company and Executive otherwise agree in writing, any determination required All determinations under this Section 8 10 shall be made by an independent advisor designated a nationally recognized accounting firm selected by the Company and reasonably acceptable to Executive (“Independent Advisor”the "AUDITOR"), whose determination shall be conclusive and binding upon Executive and the Company for shall pay all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions costs and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 expenses of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this SectionAuditor. The Company shall bear all costs that Independent Advisor may incur cooperate in connection with any calculations contemplated by good faith in making such determinations and in providing the necessary information for this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amountpurpose.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (a) In If any of the event that any payment payments or benefit benefits received or to be received by Executive in connection with a Change in Control or Executive's termination of employment, whether or not pursuant to this Agreement (such payments or otherwise benefits, excluding the Gross-Up Payment, as hereinafter defined, shall hereinafter be referred to as the `Total Payments') will be subject to an excise tax as provided for in Section 4999 of the Internal Revenue Code (“the `Code') (the `Excise Tax'), the Company shall pay to Executive an additional amount (the `Gross-Up Payment') such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments”; provided, however, that if the Total Payments are less than 360% of the Executive's Base Amount, as defined in section 280G(b)(3) would of the Code, the Executive shall not be entitled to the Gross-Up Payment, and the Total Payments shall be reduced as provided for in Section 11(d) below. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) constitute a “all of the Total Payments shall be treated as `parachute payment” payments' (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (`Tax Counsel') reasonably acceptable to Executive and selected by the accounting firm acting as the `Auditor', as defined below, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all `Excess parachute payments' within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence or, if higher, in the state and locality of Executive's principal place of employment, on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 11), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (including that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction) plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) If the Total Payments would constitute an Excess parachute payment, but are less than 360% of the Base Amount, such payments shall be reduced to the largest amount that may be paid to the Executive without the imposition of the Excise Tax or the disallowance as deductions to the Company under Section 280G of the Code and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 8, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Taxpayments. (be) Unless the Company and Executive otherwise agree in writing, any determination required All determinations under this Section 8 11 shall be made by an independent advisor designated a nationally recognized accounting firm selected by the Company and reasonably acceptable to Executive (“Independent Advisor”the `Auditor'), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur cooperate in connection with any calculations contemplated by good faith in making such determinations and in providing the necessary information for this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amountpurpose.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (a) In If any of the event that any payment payments or benefit benefits received or to be received by Executive in connection with a Change in Control or Executive's termination of employment, whether or not pursuant to this Agreement (such payments or otherwise benefits, excluding the Gross-Up Payment, as hereinafter defined, shall hereinafter be referred to as the "TOTAL PAYMENTS") will be subject to an excise tax as provided for in Section 4999 of the Internal Revenue Code (“the "CODE") (the "EXCISE TAX"), the Company shall pay to Executive an additional amount no later than the due date for Executive's tax return with respect to such Excise Tax (the "GROSS-UP PAYMENT") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments”; provided, however, that if the Total Payments are less than 360% of the Executive's Base Amount, as defined in Section 280G(b)(3) would of the Code, the Executive shall not be entitled to the Gross-Up Payment, and the Total Payments shall be reduced as provided for in Section 10(d) below. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) constitute a “all of the Total Payments shall be treated as "parachute payment” payments" (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("TAX COUNSEL") reasonably acceptable to Executive and selected by the accounting firm acting as the "Auditor", as defined below, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) all "Excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence or, if higher, in the state and locality of Executive's principal place of employment, on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 10), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (including that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) If the Total Payments would constitute an excess parachute payment, but are less than 360% of the Base Amount, such payments shall be reduced to the largest amount that may be paid to the Executive without the imposition of the Excise Tax or the disallowance as deductions to the Company under Section 280G of the Code and (ii) but for this section, be subject of any such payments. Unless Executive shall have given prior written notice to the excise tax imposed Company specifying a different order, the Company shall reduce or eliminate the payments or benefits by Section 4999 first reducing or eliminating the portion of the Codepayments or benefits that are not payable in cash and then by reducing or eliminating cash payments, any successor provisionsin each case, in reverse chronological order, starting with payments or any comparable federal, state, local or foreign excise tax benefits that are to be paid farthest in time from the applicable determination of the Auditor (“Excise Tax”as defined below), then, subject . Any written notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of this Section 8any plan, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement agreement or any other applicable agreement, or (B) provided as arrangement governing Executive's entitlement and rights to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest payments or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Taxbenefits. (be) Unless the Company and Executive otherwise agree in writing, any determination required All determinations under this Section 8 10 shall be made by an independent advisor designated a nationally recognized accounting firm selected by the Company and reasonably acceptable to Executive (“Independent Advisor”the "AUDITOR"), whose determination shall be conclusive and binding upon Executive and the Company for shall pay all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions costs and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 expenses of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this SectionAuditor. The Company shall bear all costs that Independent Advisor may incur cooperate in connection with any calculations contemplated by good faith in making such determinations and in providing the necessary information for this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amountpurpose.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (a) In Notwithstanding provisions to the event contrary contained in this Agreement, the Notes or the Security Agreement, the obligations of any Borrower or any Contingent Obligor to make payments of interest or other amounts which constitute interest to a Lender hereunder or under any Note shall not be required to the extent that any receipt of such payment by such Lender would be contrary to the provisions of law applicable to such Lender limiting the maximum rate of interest that may be charged or benefit received collection by such Lender. Without limiting the generality of the foregoing, all calculations of the rate of interest contracted for, charged or to be received by Executive pursuant a Lender under this Agreement and the Notes which are made for the purposes of determining whether such rate of interest exceeds the maximum rate of interest permitted by applicable law for such Lender shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of this Agreement, all interest at any time contracted for, charged or received by such Lender in connection with the indebtedness evidenced by this Agreement or otherwise (“Payments”) would (i) constitute a “parachute payment” within such Lender's Note, and then to the meaning of Section 280G extent that any such excess remains, all such excess shall be automatically credited against and in reduction of the Code principal balance owed to such Lender, and (ii) but for this section, any portion of said excess which exceeds the principal balance owed to such Lender shall be subject paid by such Lender to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax Borrowers (“Excise Tax”), then, subject to the provisions of this Section 8Sections 8.07 and 8.17 and, such Payments shall be either (A) provided in full pursuant the case of a Conduit Lender, to the terms condition that such Lender has excess funds available to it for the purpose of this Agreement or any other applicable agreement, or (B) provided as to making such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”payment), whichever it being the intent of parties hereto that under no circumstances shall the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. (b) Unless the Company and Executive otherwise agree in writing, any determination required under this Section 8 shall be made by an independent advisor designated by the Company and reasonably acceptable to Executive (“Independent Advisor”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur in connection with any calculations contemplated by this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall Borrowers be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment pay any interest in excess of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Taxhighest rate permissible under applicable law.

Certain Payments. (a) In the event that If any payment or benefit benefits received or to be received by Executive in connection with or contingent on a change in ownership or control, within the meaning defined in Section 280G of the Internal Revenue Code (the “CODE”) (or any successor provision thereto), whether or not in connection with Executive’s termination of employment, and whether or not pursuant to this Agreement (such payments or otherwise (benefits, excluding the Gross-Up Payment, as hereinafter defined, shall hereinafter be referred to as the “PaymentsTOTAL PAYMENTS”) would will be subject to an excise tax as provided for in Section 4999 of the Code (the “EXCISE TAX”), the Company shall pay to Executive an additional amount no later than the due date for Executive’s tax return with respect to such Excise Tax (the “GROSS-UP PAYMENT”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments; provided, however, that if the Total Payments are less than 360% of the Executive’s Base Amount, as defined in Section 280G(b)(3) of the Code, the Executive shall not be entitled to the Gross-Up Payment, and the Total Payments shall be reduced as provided for in Section 10(d) below. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) constitute a all of the Total Payments shall be treated as “parachute paymentpayments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“TAX COUNSEL”) reasonably acceptable to Executive and selected by the accounting firm acting as the “Auditor”, as defined below, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive’s residence or, if higher, in the state and locality of Executive’s principal place of employment, on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 10), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (including that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Executive with respect to such excess) at the time that the amount of such excess is finally determined. Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) If the Total Payments would constitute an “excess parachute payment”, but are less than 360% of the Base Amount, such payments shall be reduced to the largest amount that may be paid to the Executive without the imposition of the Excise Tax or the disallowance as deductions to the Company under Section 280G of the Code and (ii) but for this section, be subject of any such payments. Unless Executive shall have given prior written notice to the excise tax imposed Company specifying a different order, the Company shall reduce or eliminate the payments or benefits by Section 4999 first reducing or eliminating the portion of the Codepayments or benefits that are not payable in cash and then by reducing or eliminating cash payments, any successor provisionsin each case, in reverse chronological order, starting with payments or any comparable federal, state, local or foreign excise tax benefits that are to be paid farthest in time from the applicable determination of the Auditor (“Excise Tax”as defined below), then, subject . Any written notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of this Section 8any plan, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement agreement or any other applicable agreement, or (B) provided as arrangement governing Executive’s entitlement and rights to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest payments or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Taxbenefits. (be) Unless the Company and Executive otherwise agree in writing, any determination required All determinations under this Section 8 10 shall be made by an independent advisor designated a nationally recognized accounting firm selected by the Company and reasonably acceptable to Executive (the “Independent AdvisorAUDITOR”), whose determination shall be conclusive and binding upon Executive and the Company for shall pay all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions costs and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 expenses of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this SectionAuditor. The Company shall bear all costs that Independent Advisor may incur cooperate in connection with any calculations contemplated by good faith in making such determinations and in providing the necessary information for this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amountpurpose.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (ai) In Notwithstanding anything in the event that Agreement to contrary, if any payment amounts due to the Consultant hereunder or benefit received under any other agreement, plan or to be received by Executive pursuant to this Agreement or otherwise program of the Company (“Payments”) would (i) constitute a “parachute payment” within the meaning of (as defined in Section 280G 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”)) and (ii) but for this section, will be subject to the excise tax imposed by under Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax Code (“Section 4999 Excise Tax”), thenthe Company shall pay to the Consultant an additional amount (the “280G Gross-Up Payment”) such that the net amount retained by the Consultant, after deduction of any 4999 Excise Tax on Payments and any Federal, state and local income and employment taxes and 4999 Excise Tax upon the 280G Gross-Up Payment, shall be equal to the Payments to Consultant. (ii) Notwithstanding anything in this Agreement to contrary, if any amounts due to the Consultant hereunder or under any other agreement, including that certain Employment Agreement, effective as of June 10, 2004 and as amended, by and between the Company and the Consultant, plan or program of the Company constitute compensation deferred (“Deferred Compensation”) under a nonqualified deferred compensation plan, for purposes of Section 409A of the Code, and such Deferred Compensation is subject to interest and excise tax under Section 409A(a)(1)(B) of the provisions of this Section 8, Code (such Payments shall be either (A) provided in full pursuant interest and excise tax collectively referred to the terms of this Agreement or any other applicable agreement, or (B) provided herein as to such lesser extent which would result in no portion of such Payments being subject to the “409A Excise Tax (“Reduced AmountTax”), whichever the Company shall pay to the Consultant an additional amount (“409A Gross-Up Payment”) such that the net amount retained by the Consultant, after deduction of any Federal, state and local income and employment taxes, shall equal the sum of the foregoing amountsFederal, taking into account state and local income and employment taxes imposed upon the applicable federal, state, local and foreign income, employment and other taxes 409A Gross-Up Payment and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the 409A Excise Tax. (biii) Unless Except as otherwise provided in a written agreement between the Company and Executive otherwise agree in writingthe Consultant, any determination required under this Section 8 the immediately preceding paragraphs shall be made by an independent advisor designated in writing in good faith by the Company and reasonably acceptable to Executive Accounting Firm (“Independent Advisor”as defined below), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under by this Sectionparagraph, the Independent Advisor Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G the Code and 4999 of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rateother applicable legal authority. The Company and Executive Consultant shall furnish to the Independent Advisor Accounting Firm such information and documents as the Independent Advisor Accounting Firm may reasonably request in order to make such a determination under this Sectiondetermination. The Company shall bear all costs that Independent Advisor the Accounting Firm may reasonably incur in connection with any calculations contemplated by this Section. Any reduction paragraph. (iv) For purposes of determining whether any of the Payments payable hereunderwill be subject to the 4999 Excise Tax and the amount of such 4999 Excise Tax, if applicable, (A) all of the Payments shall be made by first reducing treated as “parachute payments” (within the cash payments under meaning of Section 7280G(b)(2) of the Code) unless, second by reducing COBRA reimbursement in the opinion of an accounting firm or consulting firm with particular expertise regarding 4999 Excise Tax (“Accounting Firm”) reasonably acceptable to the Consultant and lastly by reducing any other Payments in a manner determined selected by the accounting firm which was, immediately prior to the Change in Control, Company, in consultation with Executive in accordance with Code Section 409A. ’s independent auditor (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction“Auditor”), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal (in whole or in part) should not be treated by the courts as subject to the 4999 Excise Tax, (B) all “Repayment Amountexcess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the 4999 Excise Tax unless, in the opinion of Accounting Firm, such excess parachute payments (in whole or in part) should not be treated by the courts as subject to the 4999 Excise Tax, and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. The Accounting Firm shall not be a firm providing auditing or accounting services to any entity involved in the Change of Control. Fees and expenses of Accounting Firm and the Auditor shall be borne solely by Company.” The Repayment Amount (v) For purposes of determining the amount of the 280G and the 409A Gross-Up Payments, the Consultant shall be deemed to pay Federal income tax at the highest marginal rate of Federal income taxation in the calendar year in which the 280G and/or the 409A Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Consultant’s residence in the calendar year in which the 280G and/or the 409A Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. (vi) Notwithstanding anything set forth above in this Subsection 3(b) with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to payments the Company so that Executive’s net proceeds may make to, or on behalf of, the Consultant, with respect to such Payments (after taking into account a 280G Gross-Up Payment and/or a 409A Gross-Up Payment, the payment of maximum amount the excise tax imposed on such PaymentsCompany will pay pursuant to this Subsection 3(b) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount an aggregate of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax$50,000.

Certain Payments. (a) Upon receipt by either Borrower or any of their respective Subsidiaries or by the Agent of any proceeds of any insurance on any tangible property of the Company or any of its Subsidiaries, there shall become immediately due and payable a prepayment in respect of principal of the Revolving Loan in the amount of such proceeds. (b) Upon the receipt by the Company or any of its Domestic Subsidiaries of any Net Cash Proceeds from the sale by the Company or any of its Domestic Subsidiaries of any property, other than sales of Inventory in the ordinary course of business, there shall become immediately due and payable a prepayment in respect of principal of the Revolving Loan in the amount of such Net Cash Proceeds. (i) Upon receipt by the Parent, the Company or any of its Domestic Subsidiaries of any Net Cash Proceeds from any source not referred to in paragraphs (a), (b) or (f) of this Section 3.2 (other than sales of Inventory in the ordinary course of business and other than proceeds of Accounts), there shall become immediately due and payable a prepayment in respect of principal of the Revolving Loan in the amount of such Net Cash Proceeds. (ii) In the event that the Parent, the Company or any payment of its Domestic Subsidiaries is holding any cash or benefit received or to be received by Executive pursuant to cash equivalents the receipt of which did not create the requirement under this Agreement or otherwise (“Payments”) would (i) constitute for a “parachute payment” within the meaning prepayment of Section 280G principal of the Code and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, Revolving Loan or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 8, such Payments shall be either (A) provided in full pursuant to the terms of is not otherwise under this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxesunder Section 8.22 hereof), results in required to be applied to the receipt by ExecutiveRevolving Loan, on an after-tax basisthe Parent, the Company or its Domestic Subsidiary, as the case may be, shall apply such cash or cash equivalent to the prepayment of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise TaxRevolving Loan under this Section 3.2. (d) In the event that (i) the amount of proceeds or Net Cash Proceeds in respect of which a prepayment is required to be paid under paragraph (a), (b), (c) Unless or (f) of this Section 3.2 exceeds the amount of outstanding principal of the Revolving Loan, then such excess shall be immediately paid to the Agent to be held as Letter of Credit Cash Collateral and (ii) the excess referred to in clause (i) of this paragraph (d) exceeds the amount of Letter of Credit Obligations, then the amount of such excess (whether such excess is created at the time of establishment of the Letter of Credit Cash Collateral or occurs by virtue of the reduction of Letter of Credit Obligations or otherwise) shall be held by the Agent as cash collateral pursuant to the Cash Collateral Agreement and released from time to time in accordance with paragraph (e) of this Section 3.2. Interest earned and paid on such cash collateral shall be for the account of the Company or its Domestic Subsidiary as provided in the Cash Collateral Agreement and Executive otherwise agree until release as provided in writing, any determination required under paragraph (e) of this Section 8 3.2 shall be made by an independent advisor designated added to such cash collateral. (e) In the event that the Agent is holding cash collateral under clause (ii) of Section 3.2(d) hereof or Letter of Credit Cash Collateral under clause (i) of Section 3.2(d) hereof, the Agent shall release all or any portion of same to the Company to the extent requested by the Company and reasonably acceptable upon Written Notice to Executive (“Independent Advisor”)the Agent, whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Sectionso long as, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor time of such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur in connection with any calculations contemplated by this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined Written Notice by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company is in compliance with clauses (i) and (ii) of Section 6.1 hereof and so certifies in its Written Notice and so long as there is no requirement under any other provision of this Agreement that Executive’s net proceeds with respect to such Payments (after taking into account the payment Letter of the excise tax imposed on such Payments) shall Credit Cash Collateral be maximizedmaintained. Notwithstanding the foregoing, the Repayment Amount with Company shall request release of and exhaust cash collateral held under clause (ii) of Section 3.2(d) hereof prior to making any request for release of Letter of Credit Cash Collateral and, notwithstanding anything to the contrary contained in Section 2 hereof, shall give no notice of borrowing under Section 2.4 hereof while the Agent is holding any Letter of Credit Cash Collateral or cash collateral under Section 3.2(d) hereof; provided, however, that the Company may give a notice of borrowing in the event that Letter of Credit Cash Collateral is being held other than as required under Section 3.2(d) hereof. (f) Upon receipt by the Parent of any Net Cash Proceeds from the issuance of Equity Interests, there shall become due and payable on the date of such receipt a prepayment in respect of principal of the Revolving Loan in the amount of such Net Cash Proceeds if, and to such Payments the extent permitted by the Debenture Indenture. (g) None of the prepayments required under this Section 3.2 shall result in a permanent reduction in the Revolving Credit Facility Commitment. Any prepayment required under this Section 3.2 shall be zero if a Repayment Amount of more than zero would not eliminate deemed paid to the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive extent that Proceeds from the Payments. If transaction in respect of which the Excise Tax is not eliminated requirement for such prepayment arose shall have been paid into the Payment Account pursuant to this Section 8, Executive shall pay the Excise Tax8.22 hereof.

Certain Payments. (a) In the event that any payment or benefit received or to be received by Executive pursuant to this Agreement or otherwise (“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 8, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. (b) Unless the Company and Executive otherwise agree in writing, any determination required under this Section 8 shall be made by an independent advisor designated by the Company and reasonably acceptable to Executive (“Independent Advisor”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur in connection with any calculations contemplated by this Section. Any The reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 77(d)(ii), second by reducing the Pro Rata Bonus, third by reducing COBRA reimbursement under Section 7(d)(vi) and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A.Executive. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) andIf, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (a) In the event that any payment or benefit received or to be received by the Executive pursuant to this Agreement or otherwise (“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 87, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by the Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. (b) Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 8 7 shall be made by an independent advisor designated by the Company and reasonably acceptable to the Executive (“Independent Advisor”), whose determination shall be conclusive and binding upon the Executive and the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that the Executive pays all taxes at the highest marginal rate. The Company and the Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur in connection with any calculations contemplated by this Section. Any The reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 76(d)(ii), second by reducing the Pro Rata Bonus, third by reducing COBRA reimbursement under Section 6(d)(iv) and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A.the Executive. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) andIf, notwithstanding any reduction described in this Section 8 7 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that the Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then the Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) 120 days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that the Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by the Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 87, the Executive shall pay the Excise Tax.

Certain Payments. (a) In If any of the event that any payment payments or benefit benefits received or to be received by Executive in connection with a Change in Control or Executive’s termination of employment, whether or not pursuant to this Agreement (such payments or otherwise (benefits, excluding the Gross-Up Payment, as hereinafter defined, shall hereinafter be referred to as the “Total Payments”) would will be subject to an excise tax as provided for in Section 4999 of the Internal Revenue Code (the “Code”) (the “Excise Tax”), the Company shall pay to Executive an additional amount no later than the due date for Executive’s tax return with respect to such Excise Tax (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments; provided, however, that if the Total Payments are less than 360% of the Executive’s Base Amount, as defined in section 280G(b)(3) of the Code, the Executive shall not be entitled to the Gross-Up Payment, and the Total Payments shall be reduced as provided for in Section 10(d) below. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) constitute a all of the Total Payments shall be treated as “parachute paymentpayments” (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to Executive and selected by the accounting firm acting as the “Auditor”, as defined below, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all “Excess parachute payments” within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive’s residence or, if higher, in the state and locality of Executive’s principal place of employment, on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 10), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (including that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) If the Total Payments would constitute an excess parachute payment, but are less than 360% of the Base Amount, such payments shall be reduced to the largest amount that may be paid to the Executive without the imposition of the Excise Tax or the disallowance as deductions to the Company under Section 280G of the Code and (ii) but for this section, be subject of any such payments. Unless Executive shall have given prior written notice to the excise tax imposed Company specifying a different order, the Company shall reduce or eliminate the payments or benefits by Section 4999 first reducing or eliminating the portion of the Codepayments or benefits that are not payable in cash and then by reducing or eliminating cash payments, any successor provisionsin each case, in reverse chronological order, starting with payments or any comparable federal, state, local or foreign excise tax benefits that are to be paid farthest in time from the applicable determination of the Auditor (“Excise Tax”as defined below), then, subject . Any written notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of this Section 8any plan, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement agreement or any other applicable agreement, or (B) provided as arrangement governing Executive’s entitlement and rights to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest payments or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Taxbenefits. (be) Unless the Company and Executive otherwise agree in writing, any determination required All determinations under this Section 8 10 shall be made by an independent advisor designated a nationally recognized accounting firm selected by the Company and reasonably acceptable to Executive (the “Independent AdvisorAuditor”), whose determination shall be conclusive and binding upon Executive and the Company for shall pay all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions costs and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 expenses of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this SectionAuditor. The Company shall bear all costs that Independent Advisor may incur cooperate in connection with any calculations contemplated by good faith in making such determinations and in providing the necessary information for this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amountpurpose.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (a) In the event that any payment of the compensation or benefit received or to be received by Executive pursuant to benefits provided for in this Agreement or any other compensation or benefits approved at any time by the Board or the Compensation Committee of the Board and otherwise payable to Executive (“Payments”) would (iincluding stock options) constitute a “parachute paymentpayments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “CODE”), and (ii) but for this section, will be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 816(d) below, such Payments Executive shall be either receive from the Company (A) provided in full pursuant a cash payment sufficient to the terms of this Agreement or any other applicable agreementpay such excise tax, or and (B) provided as an additional payment sufficient to such lesser extent which would result in no portion of such Payments being subject pay the excise tax and federal and state income and employment taxes arising from the payments made by the Company to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject Executive pursuant to the Excise Taxthis sentence. (b) Unless the Company and Executive otherwise agree in writing, any the determination of Executive’s excise tax liability and the amount required to be paid to Executive by the Company under this Section 8 16 shall be made in writing by an independent advisor designated by the Company and reasonably acceptable a certified public accounting firm mutually agreeable to Executive (“Independent Advisor”), whose determination shall be conclusive and binding upon Executive and the Company (the “ACCOUNTANTS”), and the amounts to be paid to Executive by the Company under this Section 16 will be paid to Executive within thirty (30) days after the Accountants have finally determined that amount as provided herein (or such shorter time after the Accountants have finally determined that amount as may be necessary in order for all purposesExecutive to timely pay any withholding or estimated tax obligations arising from his receipt of any payment under this Section 16). For purposes of making the calculations required under by this SectionSection 16, the Independent Advisor Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor Accountants such information and documents as the Independent Advisor Accountants may reasonably request in order to make a determination under this SectionSection 16. The Company shall bear all fees and costs that Independent Advisor the Accountants may reasonably incur in connection with any calculations contemplated by this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A.16. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in In the absence of any such reduction), event that the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after makes a final IRS determination, an determination that the amount of excise tax payable by Executive as described above in this Section 16 is different than the amount of such payments excise tax as determined by the Accountants as provided above, then: (A) if the amount of such excise tax payable by Executive as determined by the IRS is less than the amount of such excise tax as computed by the Accountants, Executive will reimburse the Company for all excess amounts actually paid to Executive by the Company under this Section 16 due to the over-calculation of such excise tax by the Accountants within five (5) business days after Executive receives either a refund from the IRS due to such over-calculation or Executive receives an economic benefit from the IRS (such as a credit against tax payable) on account of such over-calculation, provided Executive reported and paid all his excise and income tax liabilities resulting from the operation of this Section 16 consistent with the amounts Executive was actually paid hereunder; and (B) if the amount of such excise tax payable by Executive as determined by the IRS is greater than the amount of such excise tax as computed by the Accountants, then the Company will promptly reimburse Executive for the amounts that the Company underpaid Executive under this Section 16 due to the under-calculation of such excise tax by the Accountants, calculated in accordance with Section 16(a). (d) In the event any of the compensation or benefits equal provided for in this Agreement or any other compensation or benefits approved at any time by the Board or the Compensation Committee of the Board and otherwise payable to Executive (including stock options) constitute “parachute payments” within the “Repayment Amount.” The Repayment Amount with respect meaning of Section 280G of the Code and will be subject to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on by Section 4999 of the Code, then Executive may, at his sole option and discretion, elect to waive, not receive and/or reduce such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect compensation and/or benefits to such Payments shall be zero if lesser extent as will result in no portion of such compensation or benefits being subject to the excise tax imposed by Section 4999 of the Code, and in that case the Company’s obligation to make a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by payment to Executive from the Payments. If the Excise Tax is not eliminated pursuant to this the provisions of Section 8, Executive shall pay the Excise Tax16 will be correspondingly reduced.

Certain Payments. (a) In the event that If any payment or benefit benefits received or to be received by Executive ▇▇. ▇▇▇▇▇▇▇▇ in connection with or contingent on a change in ownership or control, within the meaning defined in Section 280G of the Internal Revenue Code (the “Code”) (or any successor provision thereto), whether or not in connection with ▇▇. ▇▇▇▇▇▇▇▇’▇ termination of employment, and whether or not pursuant to this Agreement (such payments or otherwise (benefits, excluding the Gross-Up Payment, as hereinafter defined, shall hereinafter be referred to as the “Total Payments”) would will be subject to an excise tax as provided for in Section 4999 of the Code (the “Excise Tax”), Classmates shall pay to ▇▇. ▇▇▇▇▇▇▇▇ an additional amount no later than the due date for ▇▇. ▇▇▇▇▇▇▇▇’▇ tax return with respect to such Excise Tax (the “Gross-Up Payment”) such that the net amount retained by ▇▇. ▇▇▇▇▇▇▇▇, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) constitute a all of the Total Payments shall be treated as “parachute paymentpayments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to ▇▇. ▇▇▇▇▇▇▇▇ and selected by the accounting firm acting as the “Auditor”, as defined below, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) all “excess parachute payments” within the meaning of Section 280G 280G(b)(1) of the Code and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 8, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided treated as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (“Reduced Amount”), whichever in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results Code) in the receipt by Executive, on an after-tax basis, excess of the greatest amount of payments and benefits provided for hereunder Base Amount allocable to such reasonable compensation, or otherwise, notwithstanding that all or some portion of such Payments may be are otherwise not subject to the Excise Tax. , and (biii) Unless the Company and Executive otherwise agree in writing, value of any determination required under this Section 8 noncash benefits or any deferred payment or benefit shall be made by an independent advisor designated determined by the Company Auditor in accordance with the principles of Sections 280G(d)(3) and reasonably acceptable to Executive (“Independent Advisor”), whose determination shall be conclusive and binding upon Executive and 4) of the Company for all purposesCode. For purposes of making determining the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 amount of the Code; provided that Gross-Up Payment, ▇▇. ▇▇▇▇▇▇▇▇ shall be deemed to pay federal income tax at the Independent Advisor shall assume that Executive pays all highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal raterate of taxation in the state and locality of ▇▇. The Company ▇▇▇▇▇▇▇▇’▇ residence or, if higher, in the state and Executive locality of ▇▇. ▇▇▇▇▇▇▇▇’▇ principal place of employment, on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 6), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, ▇▇. ▇▇▇▇▇▇▇▇ shall furnish repay to Classmates, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (including that portion of the Gross-Up Payment attributable to the Independent Advisor Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by ▇▇. ▇▇▇▇▇▇▇▇ to the extent that such information repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), Classmates shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by ▇▇. ▇▇▇▇▇▇▇▇ with respect to such excess) at the time that the amount of such excess is finally determined. ▇▇. ▇▇▇▇▇▇▇▇ and documents as Classmates shall each reasonably cooperate with the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur other in connection with any calculations contemplated by administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) All determinations under this Section. Any reduction of the Payments payable hereunder, if applicable, Section 6 shall be made by first reducing a nationally recognized accounting firm selected by ▇▇. ▇▇▇▇▇▇▇▇ (the cash “Auditor”), and Classmates shall pay all costs and expenses of the Auditor. Classmates shall cooperate in good faith in making such determinations and in providing the necessary information for this purpose. Any payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined made by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined Company to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence on behalf of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized▇▇. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated ▇▇▇▇▇▇▇▇ pursuant to this Section 8, Executive 6 shall pay be made in no event later than the Excise Taxend of ▇▇. ▇▇▇▇▇▇▇▇’▇ taxable year next following his taxable year in which the related taxes are remitted.

Certain Payments. (a) In the event that any payment or benefit received or to be received by the Executive pursuant to this Agreement or otherwise (“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 8, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by the Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. (b) Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 8 shall be made by an independent advisor designated by the Company and reasonably acceptable to the Executive (“Independent Advisor”), whose determination shall be conclusive and binding upon the Executive and the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that the Executive pays all taxes at the highest marginal rate. The Company and the Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur in connection with any calculations contemplated by this Section. Any The reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 77(d)(iv), second by reducing the Pro Rata Bonus, third by reducing COBRA reimbursement under Section 7(d)(v) and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A.the Executive. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) andIf, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that the Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then the Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) 120 days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that the Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by the Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, the Executive shall pay the Excise Tax.

Certain Payments. (a) In the event that If any payment or benefit benefits received or to be received by Executive in connection with or contingent on a change in ownership or control, within the meaning defined in Section 280G of the Internal Revenue Code (the “CODE”) (or any successor provision thereto), whether or not in connection with Executive’s termination of employment, and whether or not pursuant to this Agreement (such payments or otherwise (benefits, excluding the Gross-Up Payment, as hereinafter defined, shall hereinafter be referred to as the “PaymentsTOTAL PAYMENTS”) would will be subject to an excise tax as provided for in Section 4999 of the Code (the “EXCISE TAX”), the Company shall pay to Executive an additional amount no later than the due date for Executive’s tax return with respect to such Excise Tax (the “GROSS-UP PAYMENT”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments; provided, however, that if the Total Payments are less than 360% of the Executive’s Base Amount, as defined in Section 280G(b)(3) of the Code, the Executive shall not be entitled to the Gross-Up Payment, and the Total Payments shall be reduced as provided for in Section 9(d) below. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) constitute a all of the Total Payments shall be treated as “parachute paymentpayments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“TAX COUNSEL”) reasonably acceptable to Executive and selected by the accounting firm acting as the “Auditor”, as defined below, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive’s residence or, if higher, in the state and locality of Executive’s principal place of employment, on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 9), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (including that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Executive with respect to such excess) at the time that the amount of such excess is finally determined. Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) If the Total Payments would constitute an “excess parachute payment”, but are less than 360% of the Base Amount, such payments shall be reduced to the largest amount that may be paid to the Executive without the imposition of the Excise Tax or the disallowance as deductions to the Company under Section 280G of the Code and (ii) but for this section, be subject of any such payments. Unless Executive shall have given prior written notice to the excise tax imposed Company specifying a different order, the Company shall reduce or eliminate the payments or benefits by Section 4999 first reducing or eliminating the portion of the Codepayments or benefits that are not payable in cash and then by reducing or eliminating cash payments, any successor provisionsin each case, in reverse chronological order, starting with payments or any comparable federal, state, local or foreign excise tax benefits that are to be paid farthest in time from the applicable determination of the Auditor (“Excise Tax”as defined below), then, subject . Any written notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of this Section 8any plan, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement agreement or any other applicable agreement, or (B) provided as arrangement governing Executive’s entitlement and rights to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest payments or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Taxbenefits. (be) Unless the Company and Executive otherwise agree in writing, any determination required All determinations under this Section 8 9 shall be made by an independent advisor designated a nationally recognized accounting firm selected by the Company and reasonably acceptable to Executive (the “Independent AdvisorAUDITOR”), whose determination shall be conclusive and binding upon Executive and the Company for shall pay all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions costs and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 expenses of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this SectionAuditor. The Company shall bear all costs that Independent Advisor may incur cooperate in connection with any calculations contemplated by good faith in making such determinations and in providing the necessary information for this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amountpurpose.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (a) In If any of the event that any payment payments or benefit benefits received or to be received by Executive in connection with a Change in Control or Executive's termination of employment, whether or not pursuant to this Agreement (such payments or otherwise benefits, excluding the Gross-Up Payment, as hereinafter defined, shall hereinafter be referred to as the "TOTAL PAYMENTS") will be subject to an excise tax as provided for in Section 4999 of the Internal Revenue Code (“the "CODE") (the "EXCISE TAX"), the Company shall pay to Executive an additional amount (the "GROSS-UP PAYMENT") such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments”; provided, however, that if the Total Payments are less than 360% of Executive's Base Amount, as defined in Section 280G(b)(3) would of the Code, Executive shall not be entitled to the Gross-Up Payment, and the Total Payments shall be reduced as provided for in Section 14(d) below. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) constitute a “all of the Total Payments shall be treated as "parachute payment” payments" (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("TAX COUNSEL") reasonably acceptable to Executive and selected by the accounting firm acting as the "Auditor", as defined below, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) all "Excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence or, if higher, in the state and locality of Executive's principal place of employment, on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 14), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (including that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction) plus interest on the amount of such repayment at 120% of the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Executive with respect to such excess) at the time that the amount of such excess is finally determined. Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) If the Total Payments would constitute an Excess parachute payment, but are less than 360% of the Base Amount, such payments shall be reduced to the largest amount that may be paid to Executive without the imposition of the Excise Tax or the disallowance as deductions to the Company under Section 280G of the Code and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 8, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Taxpayments. (be) Unless the Company and Executive otherwise agree in writing, any determination required All determinations under this Section 8 14 shall be made by an independent advisor designated a nationally recognized accounting firm selected by the Company and reasonably acceptable to Executive (“Independent Advisor”the "AUDITOR"), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur cooperate in connection with any calculations contemplated by good faith in making such determinations and in providing the necessary information for this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amountpurpose.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (a) In The obligations of the event that any payment or benefit received or to be received by Executive Company pursuant to this Agreement or otherwise in respect of any sum due to any Underwriter shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first business day, following receipt by any Underwriter of any sum adjudged to be so due in such other currency, on which (“Payments”and only to the extent that) would (i) constitute such Underwriter may in accordance with normal banking procedures purchase United States dollars with such other currency; if the United States dollars so purchased are less than the sum originally due to such Underwriter hereunder, the Company agrees, as a “parachute payment” within separate obligation and notwithstanding any such judgment, to indemnify such Underwriter against such loss. If the meaning of Section 280G United States dollars so purchased are greater than the sum originally due to such Underwriter hereunder, such Underwriter agrees to pay to the Company an amount equal to the excess of the Code and (ii) but for this section, be subject to dollars so purchased over the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 8, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as sum originally due to such lesser extent which would result in no portion Underwriter hereunder. All payments made by the Company under this Agreement, if any, will be made without withholding or deduction for or on account of such Payments being subject any present or future taxes, duties, assessments or governmental charges of whatever nature unless the Company is or becomes required by law to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest withhold or penalties on deduct such taxes), results duties, assessments or other governmental charges. In such event, the Company will pay such additional amounts as will result, after such withholding or deduction, in the receipt by Executive, on an after-tax basis, each Underwriter of the greatest amount of amounts that would otherwise have been receivable in respect thereof. All payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. (b) Unless the Company and Executive otherwise agree in writing, any determination required under this Section 8 shall be made by an independent advisor designated by the Company and reasonably acceptable to Executive under this Agreement shall be exclusive of any value added tax or any other tax of a similar nature (“Independent AdvisorVAT”), whose determination shall be conclusive ) which is chargeable thereon and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request if any VAT is or becomes chargeable in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur in connection with any calculations contemplated by this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence respect of any such reduction)payment, the Internal Revenue Service (“IRS”) determines that Executive is liable for Company shall pay in addition the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment AmountVAT (on provision of a valid VAT invoice).” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (a) In If any of the event that any payment payments or benefit benefits received or to be received by Executive in connection with a Change in Control or Executive's termination of employment, whether or not pursuant to this Agreement (such payments or otherwise benefits, excluding the Gross-Up Payment, as hereinafter defined, shall hereinafter be referred to as the "TOTAL PAYMENTS") will be subject to an excise tax as provided for in Section 4999 of the Internal Revenue Code (“the "CODE") (the "EXCISE TAX"), the Company shall pay to Executive an additional amount (the "GROSS-UP PAYMENT") such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments”; provided, however, that if the Total Payments are less than 360% of Executive's Base Amount, as defined in Section 280G(b)(3) would of the Code, Executive shall not be entitled to the Gross-Up Payment, and the Total Payments shall be reduced as provided for in Section 13(d) below. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) constitute a “all of the Total Payments shall be treated as "parachute payment” payments" (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("TAX COUNSEL") reasonably acceptable to Executive and selected by the accounting firm acting as the "Auditor", as defined below, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) all "Excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence or, if higher, in the state and locality of Executive's principal place of employment, on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 13), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (including that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction) plus interest on the amount of such repayment at 120% of the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Executive with respect to such excess) at the time that the amount of such excess is finally determined. Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) If the Total Payments would constitute an Excess parachute payment, but are less than 360% of the Base Amount, such payments shall be reduced to the largest amount that may be paid to Executive without the imposition of the Excise Tax or the disallowance as deductions to the Company under Section 280G of the Code and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 8, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Taxpayments. (be) Unless the Company and Executive otherwise agree in writing, any determination required All determinations under this Section 8 13 shall be made by an independent advisor designated a nationally recognized accounting firm selected by the Company and reasonably acceptable to Executive (“Independent Advisor”the "AUDITOR"), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur cooperate in connection with any calculations contemplated by good faith in making such determinations and in providing the necessary information for this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amountpurpose.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (a) In the event that any payment or benefit received or to be received by Executive pursuant to this Agreement or otherwise (“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 8, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. (b) Unless the Company and Executive otherwise agree in writing, any determination required under this Section 8 shall be made by an independent advisor designated by the Company and reasonably acceptable to Executive (“Independent Advisor”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that the Independent Advisor may incur in connection with any calculations contemplated by this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (a) In the event that If any payment or benefit benefits received or to be received by Executive ▇▇. ▇▇▇▇▇▇▇▇ in connection with or contingent on a change in ownership or control, within the meaning defined in Section 280G of the Internal Revenue Code (the "Code") (or any successor provision thereto), whether or not in connection with ▇▇. ▇▇▇▇▇▇▇▇'▇ termination of employment, and whether or not pursuant to this Agreement (such payments or otherwise benefits, excluding the Gross-Up Payment, as hereinafter defined, shall hereinafter be referred to as the "Total Payments") will be subject to an excise tax as provided for in Section 4999 of the Code (“the "Excise Tax"), Classmates shall pay to ▇▇. ▇▇▇▇▇▇▇▇ an additional amount no later than the due date for ▇▇. ▇▇▇▇▇▇▇▇'▇ tax return with respect to such Excise Tax (the "Gross-Up Payment") such that the net amount retained by ▇▇. ▇▇▇▇▇▇▇▇, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments”. (b) would For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) constitute a “all of the Total Payments shall be treated as "parachute payment” payments" (within the meaning of Section 280G 280G(b)(2) of the Code Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to ▇▇. ▇▇▇▇▇▇▇▇ and selected by the accounting firm acting as the "Auditor", as defined below, such payments or benefits (iiin whole or in part) but for this sectiondo not constitute parachute payments, be subject to the excise tax imposed including by reason of Section 4999 280G(b)(4)(A) of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to ii) all "excess parachute payments" within the provisions meaning of this Section 8, such Payments 280G(b)(1) of the Code shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided treated as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (“Reduced Amount”), whichever in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results Code) in the receipt by Executive, on an after-tax basis, excess of the greatest amount of payments and benefits provided for hereunder Base Amount allocable to such reasonable compensation, or otherwise, notwithstanding that all or some portion of such Payments may be are otherwise not subject to the Excise Tax. , and (biii) Unless the Company and Executive otherwise agree in writing, value of any determination required under this Section 8 noncash benefits or any deferred payment or benefit shall be made by an independent advisor designated determined by the Company Auditor in accordance with the principles of Sections 280G(d)(3) and reasonably acceptable to Executive (“Independent Advisor”), whose determination shall be conclusive and binding upon Executive and 4) of the Company for all purposesCode. For purposes of making determining the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 amount of the Code; provided that Gross-Up Payment, ▇▇. ▇▇▇▇▇▇▇▇ shall be deemed to pay federal income tax at the Independent Advisor shall assume that Executive pays all highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal raterate of taxation in the state and locality of ▇▇. The Company ▇▇▇▇▇▇▇▇'▇ residence or, if higher, in the state and Executive locality of ▇▇. ▇▇▇▇▇▇▇▇'▇ principal place of employment, on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 6), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, ▇▇. ▇▇▇▇▇▇▇▇ shall furnish repay to Classmates, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (including that portion of the Gross-Up Payment attributable to the Independent Advisor Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by ▇▇. ▇▇▇▇▇▇▇▇ to the extent that such information repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), Classmates shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by ▇▇. ▇▇▇▇▇▇▇▇ with respect to such excess) at the time that the amount of such excess is finally determined. ▇▇. ▇▇▇▇▇▇▇▇ and documents as Classmates shall each reasonably cooperate with the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur other in connection with any calculations contemplated by administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) All determinations under this Section. Any reduction of the Payments payable hereunder, if applicable, Section 6 shall be made by first reducing a nationally recognized accounting firm selected by ▇▇. ▇▇▇▇▇▇▇▇ (the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction"Auditor"), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result and Classmates shall pay all costs and expenses of the receipt of one or more Payments, then Executive Auditor. Classmates shall be obligated to surrender or pay back to cooperate in good faith in making such determinations and in providing the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amountnecessary information for this purpose.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (a) In the event that If any payment or benefit benefits received or to be received by Executive ▇▇. ▇▇▇▇▇▇▇▇ in connection with or contingent on a change in ownership or control, within the meaning defined in Section 280G of the Internal Revenue Code (the “Code”) (or any successor provision thereto), whether or not in connection with ▇▇. ▇▇▇▇▇▇▇▇’▇ termination of employment, and whether or not pursuant to this Agreement (such payments or otherwise (benefits, excluding the Gross-Up Payment, as hereinafter defined, shall hereinafter be referred to as the “Total Payments”) would will be subject to an excise tax as provided for in Section 4999 of the Code (the “Excise Tax”), Classmates shall pay to ▇▇. ▇▇▇▇▇▇▇▇ an additional amount no later than the due date for ▇▇. ▇▇▇▇▇▇▇▇’▇ tax return with respect to such Excise Tax (the “Gross-Up Payment”) such that the net amount retained by ▇▇. ▇▇▇▇▇▇▇▇, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) constitute a all of the Total Payments shall be treated as “parachute paymentpayments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to ▇▇. ▇▇▇▇▇▇▇▇ and selected by the accounting firm acting as the “Auditor”, as defined below, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) all “excess parachute payments” within the meaning of Section 280G 280G(b)(1) of the Code and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 8, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided treated as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (“Reduced Amount”), whichever in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results Code) in the receipt by Executive, on an after-tax basis, excess of the greatest amount of payments and benefits provided for hereunder Base Amount allocable to such reasonable compensation, or otherwise, notwithstanding that all or some portion of such Payments may be are otherwise not subject to the Excise Tax. , and (biii) Unless the Company and Executive otherwise agree in writing, value of any determination required under this Section 8 noncash benefits or any deferred payment or benefit shall be made by an independent advisor designated determined by the Company Auditor in accordance with the principles of Sections 280G(d)(3) and reasonably acceptable to Executive (“Independent Advisor”), whose determination shall be conclusive and binding upon Executive and 4) of the Company for all purposesCode. For purposes of making determining the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 amount of the Code; provided that Gross-Up Payment, ▇▇. ▇▇▇▇▇▇▇▇ shall be deemed to pay federal income tax at the Independent Advisor shall assume that Executive pays all highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal raterate of taxation in the state and locality of ▇▇. The Company ▇▇▇▇▇▇▇▇’▇ residence or, if higher, in the state and Executive locality of ▇▇. ▇▇▇▇▇▇▇▇’▇ principal place of employment, on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 6), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, ▇▇. ▇▇▇▇▇▇▇▇ shall furnish repay to Classmates, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (including that portion of the Gross-Up Payment attributable to the Independent Advisor Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by ▇▇. ▇▇▇▇▇▇▇▇ to the extent that such information repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), Classmates shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by ▇▇. ▇▇▇▇▇▇▇▇ with respect to such excess) at the time that the amount of such excess is finally determined. ▇▇. ▇▇▇▇▇▇▇▇ and documents as Classmates shall each reasonably cooperate with the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur other in connection with any calculations contemplated by administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) All determinations under this Section. Any reduction of the Payments payable hereunder, if applicable, Section 6 shall be made by first reducing a nationally recognized accounting firm selected by ▇▇. ▇▇▇▇▇▇▇▇ (the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction“Auditor”), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result and Classmates shall pay all costs and expenses of the receipt of one or more Payments, then Executive Auditor. Classmates shall be obligated to surrender or pay back to cooperate in good faith in making such determinations and in providing the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amountnecessary information for this purpose.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (a) In All sums payable by the event Company under this Agreement shall be paid without set-off or counterclaim, and free and clear of and without deduction or withholding for or on account of any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature and all interest, penalties or similar liabilities with respect thereto, unless such deduction or withholding is required by law. If the Company is required by law to deduct or withhold for or on account of tax from a payment made under this Agreement, the Company shall pay such additional amounts as may be necessary so that any payment or benefit received or to be the net amount received by Executive pursuant the recipient of the payment is equal to this Agreement the amount the recipient would have received if such deduction or otherwise (“Payments”) would withholding had not been so required; provided, however, that no such additional amounts shall be payable: (i) constitute a “parachute payment” within the meaning of Section 280G with respect to taxes imposed by reason of the Code and recipient having any present or former connection with the jurisdiction imposing such taxes (other than any connection resulting from the transactions contemplated by this Agreement); or (ii) to the extent that such taxes would not have been imposed but for this sectionthe failure of the recipient to comply with a written notice requesting any certification, be subject identification or other information concerning the nationality, residence, identity or connection with the jurisdiction imposing such taxes of the recipient that it is legally able to the excise tax provide, if such compliance is required or imposed by Section 4999 of the Code, any successor provisionslaw as a precondition to an exemption from, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 8reduction in, such Payments shall be either (A) provided in full pursuant to taxes, and such compliance is not materially more onerous than the terms provision of this Agreement an IRS Form W-8 or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise TaxW-9. (b) Unless Where the Company is obliged to pay any fee, commission, underwriting discount or other sum to the Representatives (on behalf of the Underwriters) or to any Underwriter pursuant to this Agreement, and Executive otherwise agree any amount in writingrespect of VAT is properly chargeable on it, any determination required under this Section 8 being VAT for which the Representatives or relevant Underwriter is liable to account, (i) the relevant Underwriters shall be made by an independent advisor designated by provide to the Company a valid VAT invoice, and reasonably acceptable to Executive (“Independent Advisor”), whose determination shall be conclusive and binding upon Executive and ii) the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish pay to the Independent Advisor such information and documents as recipient in addition to the Independent Advisor may reasonably request in order sum otherwise payable an amount equal to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur in connection with any calculations contemplated by this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing VAT for which the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A.Representatives or relevant Underwriter is liable to account. (c) Where, under the terms of this Agreement, the Company is liable to indemnify or reimburse or otherwise compensate any Underwriter or any other Indemnified Person in respect of any costs, charges or expenses, the payment shall include an amount equal to any VAT thereon that such Underwriter or Indemnified Person determines in good faith is not otherwise recoverable by such Underwriter or Indemnified Person, as applicable (or the representative member of any VAT group of which it forms part). If Executive is determined to be entitled the relevant cost, charge or expense relates to a Reduced Amount pursuant supply made to Section 8(a) andan Underwriter or other Indemnified Person in its capacity as agent of the Company, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive which is liable treated for the Excise Tax VAT purposes as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back supply made direct to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments Underwriter or benefits equal Indemnified Person shall use reasonable endeavours to procure that the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid supplier issues to the Company so that Executive’s net proceeds with a valid VAT invoice in respect to of such Payments cost, charge or expense. (after taking into account d) For the payment purposes of this Section ‎26, “VAT” shall mean (i) within the excise United Kingdom, any value added tax imposed on by the VAT A▇▇ ▇▇▇▇, (ii) within the European Union, such Paymentstax as may be levied in accordance with (but subject to derogations from) shall be maximized. Notwithstanding the foregoingDirective 2006/112/EEC, and (iii) outside the Repayment Amount with respect to such Payments shall be zero if United Kingdom and the European Union, any tax of a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Paymentssimilar nature. If the Excise Tax foregoing is in accordance with your understanding, please sign and return this Agreement, and upon the acceptance hereof by you this Agreement and such acceptance hereof shall constitute a binding agreement between each of the Underwriters and the Company. Very truly yours, LivaNova PLC By: /s/ A▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Name: A▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Title: Chief Financial Officer G▇▇▇▇▇▇ Sachs & Co. LLC By: /s/ E▇▇▇▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇▇▇▇ ▇▇▇▇ Title: Managing Director By: /s/ V▇▇▇▇▇▇▇ ▇▇▇▇ Name: V▇▇▇▇▇▇▇ ▇▇▇▇ Title: Authorized Signatory UBS Securities LLC By: /s/ B▇▇▇▇▇▇▇ Bible Name: B▇▇▇▇▇▇▇ Bible Title: Executive Director By: /s/ J▇▇▇▇ ▇▇▇▇▇▇▇ Name: J▇▇▇▇ ▇▇▇▇▇▇▇ Title: Associate Director G▇▇▇▇▇▇ S▇▇▇▇ & Co. LLC 1,623,637 243,545 Barclays Capital Inc. 1,196,364 179,454 UBS Securities LLC 598,181 89,727 R▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated 109,091 16,364 S▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company Incorporated 109,091 16,364 Total 3,636,364 545,454 (a) Issuer Free Writing Prospectuses not eliminated pursuant to this Section 8, Executive shall pay included in the Excise Tax.Pricing Disclosure Package: None

Certain Payments. (a) In If any of the event that any payment payments or benefit benefits received or to be received by Executive in connection with a Change in Control or Executive's termination of employment, whether or not pursuant to this Agreement (such payments or otherwise benefits, excluding the Gross-Up Payment, as hereinafter defined, shall hereinafter be referred to as the "Total Payments") will be subject to an excise tax as provided for in Section 4999 of the Internal Revenue Code (“the "Code") (the "Excise Tax"), the Company shall pay to Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments”; provided, however, that if the Total Payments are less than 360% of the Executive's Base Amount, as defined in section 280G(b)(3) would of the Code, the Executive shall not be entitled to the Gross-Up Payment, and the Total Payments shall be reduced as provided for in Section 10(d) below. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) constitute a “all of the Total Payments shall be treated as "parachute payment” payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to Executive and selected by the accounting firm acting as the "Auditor", as defined below, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "Excess parachute payments" within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence or, if higher, in the state and locality of Executive's principal place of employment, on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 10), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (including that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction) plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) If the Total Payments would constitute an Excess parachute payment, but are less than 360% of the Base Amount, such payments shall be reduced to the largest amount that may be paid to the Executive without the imposition of the Excise Tax or the disallowance as deductions to the Company under Section 280G of the Code and of any such payments. (iie) but for this section, be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 8, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. (b) Unless the Company and Executive otherwise agree in writing, any determination required All determinations under this Section 8 10 shall be made by an independent advisor designated a nationally recognized accounting firm selected by the Company and reasonably acceptable to Executive (“Independent Advisor”the "Auditor"), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur cooperate in connection with any calculations contemplated by good faith in making such determinations and in providing the necessary information for this Sectionpurpose. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amount11.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (a) In the event that any payment of the compensation or benefit received or to be received by Executive pursuant to benefits provided for in this Agreement or any other compensation or benefits approved at any time by the Board or the Compensation Committee of the Board and otherwise payable to Executive (“Payments”) would (iincluding stock options) constitute a “"parachute payment” payments" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "CODE"), and (ii) but for this section, will be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 816(d) below, such Payments Executive shall be either receive from the Company (A) provided in full pursuant a cash payment sufficient to the terms of this Agreement or any other applicable agreementpay such excise tax, or and (B) provided as an additional payment sufficient to such lesser extent which would result in no portion of such Payments being subject pay the excise tax and federal and state income and employment taxes arising from the payments made by the Company to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject Executive pursuant to the Excise Taxthis sentence. (b) Unless the Company and Executive otherwise agree in writing, any the determination of Executive's excise tax liability and the amount required to be paid to Executive by the Company under this Section 8 16 shall be made in writing by an independent advisor designated by the Company and reasonably acceptable a certified public accounting firm mutually agreeable to Executive (“Independent Advisor”), whose determination shall be conclusive and binding upon Executive and the Company (the "ACCOUNTANTS"), and the amounts to be paid to Executive by the Company under this Section 16 will be paid to Executive within thirty (30) days after the Accountants have finally determined that amount as provided herein (or such shorter time after the Accountants have finally determined that amount as may be necessary in order for all purposesExecutive to timely pay any withholding or estimated tax obligations arising from his receipt of any payment under this Section 16). For purposes of making the calculations required under by this SectionSection 16, the Independent Advisor Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor Accountants such information and documents as the Independent Advisor Accountants may reasonably request in order to make a determination under this SectionSection 16. The Company shall bear all fees and costs that Independent Advisor the Accountants may reasonably incur in connection with any calculations contemplated by this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A.16. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in In the absence of any such reduction), event that the Internal Revenue Service (“"IRS”") determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after makes a final IRS determination, an determination that the amount of excise tax payable by Executive as described above in this Section 16 is different than the amount of such payments excise tax as determined by the Accountants as provided above, then: (A) if the amount of such excise tax payable by Executive as determined by the IRS is less than the amount of such excise tax as computed by the Accountants, Executive will reimburse the Company for all excess amounts actually paid to Executive by the Company under this Section 16 due to the over-calculation of such excise tax by the Accountants within five (5) business days after Executive receives either a refund from the IRS due to such over-calculation or Executive receives an economic benefit from the IRS (such as a credit against tax payable) on account of such over-calculation, provided Executive reported and paid all his excise and income tax liabilities resulting from the operation of this Section 16 consistent with the amounts Executive was actually paid hereunder; and (B) if the amount of such excise tax payable by Executive as determined by the IRS is greater than the amount of such excise tax as computed by the Accountants, then the Company will promptly reimburse Executive for the amounts that the Company underpaid Executive under this Section 16 due to the under-calculation of such excise tax by the Accountants, calculated in accordance with Section 16(a). (d) In the event any of the compensation or benefits equal provided for in this Agreement or any other compensation or benefits approved at any time by the Board or the Compensation Committee of the Board and otherwise payable to Executive (including stock options) constitute "parachute payments" within the “Repayment Amount.” The Repayment Amount with respect meaning of Section 280G of the Code and will be subject to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on by Section 4999 of the Code, then Executive may, at his sole option and discretion, elect to waive, not receive and/or reduce such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect compensation and/or benefits to such Payments shall be zero if lesser extent as will result in no portion of such compensation or benefits being subject to the excise tax imposed by Section 4999 of the Code, and in that case the Company's obligation to make a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by payment to Executive from the Payments. If the Excise Tax is not eliminated pursuant to this the provisions of Section 8, Executive shall pay the Excise Tax16 will be correspondingly reduced.

Certain Payments. Contingent upon and subject to the occurrence of the Effective Date and the consummation of the Merger: (a) In The Company shall make the event that following payments to you, in lieu of any payment or benefit received or further Company obligations to be received by Executive pursuant to this Agreement or otherwise (“Payments”) would you under Sections 3 and 5 of the Employment Letter Agreement: (i) constitute A payment in the amount of Twenty-Two Million Dollars ($22,000,000) in cash by wire transfer of immediately available funds, to the account designated by you in a “parachute written notice to the Company prior to the date of such payment” within the meaning of Section 280G of the Code and , shall be made on July 1, 2009; (ii) but for this sectionA payment in the amount of Eight Million Dollars ($8,000,000) in cash, to be subject paid by the Company on January 2, 2009, by wire transfer of immediately available funds to the excise tax imposed account designated by you in a written notice to the Company prior to the date of such payment, which payment shall be in lieu of any annual bonus for 2008 pursuant to Section 4999 3(b) of the CodeEmployment Letter Agreement; and (iii) A payment equal to the sum of (A) the amount of any expenses incurred through the Effective Date required to be reimbursed under Section 3(d) of the Employment Letter Agreement, plus (B) the amount of your accrued but unpaid Base Salary (as defined in Section 3(a) of the Employment Letter Agreement) through the Effective Date, as provided in Section 3(a) of the Employment Letter Agreement. (b) You shall be entitled to any successor provisionsother payments, entitlements and benefits, if any, in accordance with applicable plans, programs, arrangements of, or any comparable federalagreement, stateincluding the Employment Letter Agreement, local with, Historic General Maritime or foreign excise tax any other member of the GenMar Group. (c) The aggregate amount of the outstanding loan made by Historic General Maritime to you shall become due and payable as of the Effective Date. (d) Each of the restricted stock grant agreements between you and Historic General Maritime listed below (collectively, as they may be amended from time to time, the “Grant Agreements”) shall be amended to delete therefrom Section 16 (“Excise Tax”)) thereof in its entirety, thenwith no further action required by you, subject to the provisions of this Section 8, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement Historic General Maritime or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. (b) Unless the Company and Executive otherwise agree in writing, any determination required under this Section 8 shall be made by an independent advisor designated by the Company and reasonably acceptable to Executive (“Independent Advisor”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur in connection with any calculations contemplated by this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A.each such amendment to be effective as of the Effective Date: (ci) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(aRestricted Stock Grant Agreement, dated November 26, 2002; ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇ October 24, 2008 Page 4 (ii) Restricted Stock Grant Agreement, dated February 9, 2005; (iii) Restricted Stock Grant Agreement, dated April 6, 2005; (iv) Restricted Stock Grant Agreement, dated December 21, 2005; (v) Restricted Stock Grant Agreement, dated December 18, 2006; (vi) Restricted Stock Grant Agreement, dated April 2, 2007; and (vii) Restricted Stock Grant Agreement, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction)dated December 21, the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amount2007.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (a) In the event that If any payment or benefit benefits received or to be received by Executive pursuant to this Agreement in connection with a change in ownership or otherwise control, within the meaning defined in Section 280G of the Internal Revenue Code (the “Code”) (or any successor provision thereto), (such payments or benefits, excluding the Gross-Up Payment, as hereinafter defined, shall hereinafter be referred to as the “Total Payments”) would will be subject to an excise tax as provided for in Section 4999 of the Code (the “Excise Tax”), the Company shall pay to Executive an additional amount no later than the due date for Executive’s tax return with respect to such Excise Tax (the “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments; provided, however, that if the Total Payments are less than 360% of the Executive’s Base Amount, as defined in Section 280G(b)(3) of the Code, the Executive shall not be entitled to the Gross-Up Payment, and the Total Payments shall be reduced as provided for in Section 6(d) below. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) constitute a all of the Total Payments shall be treated as “parachute paymentpayments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to Executive and selected by the accounting firm acting as the “Auditor”, as defined below, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation on the Separation Date net of the actual reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (including that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Executive with respect to such excess) at the time that the amount of such excess is finally determined. Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) If the Total Payments would constitute an “excess parachute payment”, but are less than 360% of the Base Amount, such payments shall be reduced to the largest amount that may be paid to the Executive without the imposition of the Excise Tax or the disallowance as deductions to the Company under Section 280G of the Code and (ii) but for this section, be subject of any such payments. Unless Executive shall have given prior written notice to the excise tax imposed Company specifying a different order, the Company shall reduce or eliminate the payments or benefits by Section 4999 first reducing or eliminating the portion of the Codepayments or benefits that are not payable in cash and then by reducing or eliminating cash payments, any successor provisionsin each case, in reverse chronological order, starting with payments or any comparable federal, state, local or foreign excise tax benefits that are to be paid farthest in time from the applicable determination of the Auditor (“Excise Tax”as defined below), then, subject . Any written notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of this Section 8any plan, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement agreement or any other applicable agreement, or (B) provided as arrangement governing Executive’s entitlement and rights to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest payments or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Taxbenefits. (be) Unless the Company and Executive otherwise agree in writing, any determination required All determinations under this Section 8 6 shall be made by an independent advisor designated a nationally recognized accounting firm selected by the Company and reasonably acceptable to Executive (the “Independent AdvisorAuditor”), whose determination shall be conclusive and binding upon Executive and the Company for shall pay all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions costs and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 expenses of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this SectionAuditor. The Company shall bear all costs that Independent Advisor may incur cooperate in connection with any calculations contemplated by good faith in making such determinations and in providing the necessary information for this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amountpurpose.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (a) In Notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement to the contrary, in the event that any payment or benefit received or to be received by the Executive pursuant to this Agreement or otherwise (“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 87, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by the Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. (b) Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 8 7 shall be made by an independent advisor designated by the Company and reasonably acceptable to the Executive (“Independent Advisor”), whose determination shall be conclusive and binding upon the Executive and the Company for all purposes; provided that each party may have a reasonable opportunity to challenge such determinations. For purposes of making the calculations required under this Section, the Independent Advisor shall make use of reasonable mitigation techniques, including making reasonable exclusions for certain amounts as consideration for applicable restrictive covenants, and may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that the Executive pays all taxes at the highest marginal rate. The Company and the Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur in connection with any calculations contemplated by this SectionSection and shall use its best efforts to defend the calculations of the Independent Advisor if they are challenged by the Internal Revenue Service (“IRS”). Any The reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 76(d)(ii), second by reducing the Pro Rata Bonus, third by reducing COBRA reimbursement under Section 6(d)(v) and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A.the Executive. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) andIf, notwithstanding any reduction described in this Section 8 7 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) IRS determines that the Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then the Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) 120 days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that the Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by the Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 87, the Executive shall pay the Excise Tax.

Certain Payments. (a) In the event that If any payment or benefit benefits received or to be received by Executive pursuant to this Agreement in connection with a change in ownership or otherwise control, within the meaning defined in Section 280G of the Internal Revenue Code (the “Code”) (or any successor provision thereto), (such payments or benefits, excluding the Gross-Up Payment, as hereinafter defined, shall hereinafter be referred to as the “Total Payments”) would will be subject to an excise tax as provided for in Section 4999 of the Code (the “Excise Tax”), the Company shall pay to Executive an additional amount no later than the due date for Executive’s tax return with respect to such Excise Tax (the “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments; provided, however, that if the Total Payments are less than 360% of the Executive’s Base Amount, as defined in Section 280G(b)(3) of the Code, the Executive shall not be entitled to the Gross-Up Payment, and the Total Payments shall be reduced as provided for in Section 10(d) below. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) constitute a all of the Total Payments shall be treated as “parachute paymentpayments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to Executive and selected by the accounting firm acting as the “Auditor”, as defined below, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the actual marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the actual marginal rate of taxation on the Separation Date net of the actual reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (including that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Executive with respect to such excess) at the time that the amount of such excess is finally determined. Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) If the Total Payments would constitute an “excess parachute payment”, but are less than 360% of the Base Amount, such payments shall be reduced to the largest amount that may be paid to the Executive without the imposition of the Excise Tax or the disallowance as deductions to the Company under Section 280G of the Code and (ii) but for this section, be subject of any such payments. Unless Executive shall have given prior written notice to the excise tax imposed Company specifying a different order, the Company shall reduce or eliminate the payments or benefits by Section 4999 first reducing or eliminating the portion of the Codepayments or benefits that are not payable in cash and then by reducing or eliminating cash payments, any successor provisionsin each case, in reverse chronological order, starting with payments or any comparable federal, state, local or foreign excise tax benefits that are to be paid farthest in time from the applicable determination of the Auditor (“Excise Tax”as defined below), then, subject . Any written notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of this Section 8any plan, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement agreement or any other applicable agreement, or (B) provided as arrangement governing Executive’s entitlement and rights to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest payments or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Taxbenefits. (be) Unless the Company and Executive otherwise agree in writing, any determination required All determinations under this Section 8 6 shall be made by an independent advisor designated a nationally recognized accounting firm selected by the Company and reasonably acceptable to Executive (the “Independent AdvisorAuditor”), whose determination shall be conclusive and binding upon Executive and the Company for shall pay all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions costs and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 expenses of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this SectionAuditor. The Company shall bear all costs that Independent Advisor may incur cooperate in connection with any calculations contemplated by good faith in making such determinations and in providing the necessary information for this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amountpurpose.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (a) In If any of the event that any payment payments or benefit benefits received or to be received by Executive in connection with a Change in Control or Executive's termination of employment, whether or not pursuant to this Agreement (such payments or otherwise benefits, excluding the Gross-Up Payment, as hereinafter defined, shall hereinafter be referred to as the "Total Payments") will be subject to an excise tax as provided for in Section 4999 of the Internal Revenue Code (“the "Code") (the "Excise Tax"), the Company shall pay to Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments”; provided, however, that if the Total Payments are less than 360% of the Executive's Base Amount, as defined in section 280G(b)(3) would of the Code, the Executive shall not be entitled to the Gross-Up Payment, and the Total Payments shall be reduced as provided for in Section 10(d) below. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) constitute a “all of the Total Payments shall be treated as "parachute payment” payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to Executive and selected by the accounting firm acting as the "Auditor", as defined below, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "Excess parachute payments" within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence or, if higher, in the state and locality of Executive's principal place of employment, on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 10), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (including that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction) plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) If the Total Payments would constitute an Excess parachute payment, but are less than 360% of the Base Amount, such payments shall be reduced to the largest amount that may be paid to the Executive without the imposition of the Excise Tax or the disallowance as deductions to the Company under Section 280G of the Code and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 8, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Taxpayments. (be) Unless the Company and Executive otherwise agree in writing, any determination required All determinations under this Section 8 10 shall be made by an independent advisor designated a nationally recognized accounting firm selected by the Company and reasonably acceptable to Executive (“Independent Advisor”the "Auditor"), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur cooperate in connection with any calculations contemplated by good faith in making such determinations and in providing the necessary information for this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) and, notwithstanding any reduction described in this Section 8 (or in the absence of any such reduction), the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amountpurpose.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.

Certain Payments. (a) In The obligations of the event that any payment or benefit received or to be received by Executive Company pursuant to this Agreement or otherwise in respect of any sum due to any Underwriter shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first business day, following receipt by any Underwriter of any sum adjudged to be so due in such other currency, on which (“Payments”and only to the extent that) would (i) constitute such Underwriter may in accordance with normal banking procedures purchase United States dollars with such other currency; if the United States dollars so purchased are less than the sum originally due to such Underwriter hereunder, the Company agrees, as a “parachute payment” within separate obligation and notwithstanding any such judgment, to indemnify such Underwriter against such loss. If the meaning of Section 280G United States dollars so purchased are greater than the sum originally due to such Underwriter hereunder, such Underwriter agrees to pay to the Company an amount equal to the excess of the Code and (ii) but for this section, be subject to dollars so purchased over the excise tax imposed by Section 4999 of the Code, any successor provisions, or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 8, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as sum originally due to such lesser extent which would result in no portion Underwriter hereunder. All payments made by the Company under this Agreement, if any, will be made without withholding or deduction for or on account of such Payments being subject any present or future taxes, duties, assessments or governmental charges of whatever nature unless the Company is or becomes required by law to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest withhold or penalties on deduct such taxes), results duties, assessments or other governmental charges. In such event, the Company will pay such additional amounts as will result, after such withholding or deduction, in the receipt by Executive, on an after-tax basis, each Underwriter of the greatest amount of amounts that would otherwise have been receivable in respect thereof. All payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. (b) Unless the Company and Executive otherwise agree in writing, any determination required under this Section 8 shall be made by an independent advisor designated by the Company and reasonably acceptable to Executive under this Agreement shall be exclusive of any value added tax or any other tax of a similar nature (“Independent AdvisorVAT”)) which is chargeable thereon and if any VAT is or becomes chargeable in respect of any such payment, whose determination shall be conclusive and binding upon Executive and the Company for all purposesshall pay in addition the amount of such VAT (on provision of a valid VAT invoice). For purposes of making If the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur in connection with any calculations contemplated by this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive foregoing is in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) andyour understanding, notwithstanding any reduction described in please indicate your acceptance of this Section 8 (or Agreement by signing in the absence space provided below. Very truly yours, SIGNED by ▇▇▇▇ ▇. ▇▇▇▇▇, Director, President and Chief Executive Officer, for and on behalf of any such reduction)Amarin Corporation plc /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ SIGNED by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the Internal Revenue Service (“IRS”) determines that Executive is liable Vice President, General Counsel and Secretary, for the Excise Tax and on behalf of Amarin Corporation plc /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Accepted as a result of the receipt of one or more Paymentsdate first written above. ▇▇▇▇▇▇▇▇▇ LLC By: /s/ ▇▇▇▇▇ ▇▇▇▇ Authorized Signatory CITIGROUP GLOBAL MARKETS INC. By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Authorized Signatory ▇▇▇▇▇▇▇▇▇ LLC 8,018,000 Citigroup Global Markets Inc. 8,018,000 Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. 2,110,000 ▇.▇. ▇▇▇▇▇▇▇▇▇▇ & Co. 1,477,000 SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, then Executive shall be obligated to surrender or pay back to Inc. 1,477,000 Total 21,100,000 a. Free-Writing Prospectuses (included in the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.Pricing Disclosure Package)

Certain Payments. (a) In The obligations of the event that any payment or benefit received or to be received by Executive Company pursuant to this Agreement or otherwise in respect of any sum due to the Underwriter shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first business day, following receipt by the Underwriter of any sum adjudged to be so due in such other currency, on which (“Payments”and only to the extent that) would (i) constitute the Underwriter may in accordance with normal banking procedures purchase United States dollars with such other currency; if the United States dollars so purchased are less than the sum originally due to the Underwriter hereunder, the Company agrees, as a “parachute payment” within separate obligation and notwithstanding any such judgment, to indemnify the meaning of Section 280G Underwriter against such loss. If the United States dollars so purchased are greater than the sum originally due to the Underwriter hereunder, the Underwriter agrees to pay to the Company an amount equal to the excess of the Code and (ii) but for this section, be subject dollars so purchased over the sum originally due to the excise tax imposed Underwriter hereunder. All payments made by Section 4999 the Company under this Agreement, if any, will be made without withholding or deduction for or on account of any present or future taxes, duties, assessments or governmental charges of whatever nature unless the Code, any successor provisions, Company is or any comparable federal, state, local becomes required by law to withhold or foreign excise tax (“Excise Tax”), then, subject to the provisions of this Section 8, such Payments shall be either (A) provided in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including, without limitation, any interest or penalties on deduct such taxes), results duties, assessments or other governmental charges. In such event, the Company will pay such additional amounts as will result, after such withholding or deduction, in the receipt by Executive, on an after-tax basis, the Underwriter of the greatest amount of amounts that would otherwise have been receivable in respect thereof. All payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. (b) Unless the Company and Executive otherwise agree in writing, any determination required under this Section 8 shall be made by an independent advisor designated by the Company and reasonably acceptable to Executive under this Agreement shall be exclusive of any value added tax or any other tax of a similar nature (“Independent AdvisorVAT”)) which is chargeable thereon and if any VAT is or becomes chargeable in respect of any such payment, whose determination shall be conclusive and binding upon Executive and the Company for all purposesshall pay in addition the amount of such VAT (on provision of a valid VAT invoice). For purposes of making If the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to the Independent Advisor such information and documents as the Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that Independent Advisor may incur in connection with any calculations contemplated by this Section. Any reduction of the Payments payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 7, second by reducing COBRA reimbursement and lastly by reducing any other Payments in a manner determined by the Company, in consultation with Executive foregoing is in accordance with Code Section 409A. (c) If Executive is determined to be entitled to a Reduced Amount pursuant to Section 8(a) andyour understanding, notwithstanding any reduction described in please indicate your acceptance of this Section 8 (or Agreement by signing in the absence space provided below. Very truly yours, SIGNED by ▇▇▇▇ ▇. ▇▇▇▇▇, Director, President and Chief Executive Officer, for and on behalf of any such reduction)Amarin Corporation plc /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ SIGNED by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the Internal Revenue Service (“IRS”) determines that Executive is liable Vice President, General Counsel and Secretary, for the Excise Tax and on behalf of Amarin Corporation plc /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Accepted as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender or pay back to date first written above. CANTOR ▇▇▇▇▇▇▇▇▇▇ & CO. By: /s/ ▇▇▇▇ ▇▇▇▇▇ Authorized Signatory a. Free-Writing Prospectuses (included in the Company, within one hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments (after taking into account the payment of the excise tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount with respect to such Payments shall be zero if a Repayment Amount of more than zero would not eliminate the Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8, Executive shall pay the Excise Tax.Pricing Disclosure Package)