Common use of Determinations Clause in Contracts

Determinations. Subject to the provisions of Section 9(c), all determinations required to be made under this Section 9, including whether and when any Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the Company’s then current independent public accountants (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination; provided, however, in no event shall the Gross-Up Payment be paid later than the end of the taxable year following the taxable year in which the Excise Tax is remitted to the Internal Revenue Service. The Accounting Firm shall furnish the Executive with a written opinion that reporting the Excise Tax, or the failure to report the Excise Tax, as applicable, on the Executive’s applicable federal income tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive.

Determinations. Subject to the provisions of Section 9(c)) below, all determinations required to be made under this Section 9, including whether and when any an Excise Tax Gross-Up Payment is required and required, the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Company’s then current independent public accountants Company (the “Accounting Firm”) which ); provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive within 15 fifteen business days of the receipt of notice from the Executive that there has been a Payment, Payment or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination; provided, however, in no event shall the Gross-Up Payment be paid later than the end of the taxable year following the taxable year in which the Excise Tax is remitted to the Internal Revenue Service. The Accounting Firm shall furnish the Executive with a written opinion that reporting the Excise Tax, or the failure to report the Excise Tax, as applicable, on the Executive’s applicable federal income tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and Executive, unless the Company obtains an opinion of outside legal counsel, based upon at least “substantial authority” within the meaning of Section 6662 of the Code, reaching a different determination, in which event such legal opinion shall be binding upon the Company and Executive. As a result of Notwithstanding anything herein to the uncertainty contrary, in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that no event shall any Excise Tax Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(c) and the Executive thereafter is required to make a Payment or any payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall income or other taxes to be promptly paid by the Company under this Section 9 be made later than the end of Executive’s taxable year next following Executive’s taxable year in which Executive remits the related taxes. Any costs and expenses incurred by the Company on behalf of Executive under this Section 9 due to any tax contest, audit or for litigation will be paid by the benefit Company promptly upon the date the Excise Tax (or any related penalties and interest) is due, and in no event later than by the end of Executive’s taxable year following Executive’s taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Executive’s taxable year following Executive’s taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation.

Determinations. Subject to the provisions of Section 9(c)5.3, all determinations required to be made under this Section 9Article 5, including whether and when any a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the Company’s then current independent nationally recognized certified public accountants accounting firm used by the Company immediately prior to the effective date of the Change in Control or, if such firm declines to serve, such other nationally recognized certified public accounting firm as may be designated by the Executive (the “Accounting Firm”) which ). The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive within 15 fifteen (15) business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination; provided, however, in no event shall the Gross-Up Payment be paid later than the end of the taxable year following the taxable year in which the Excise Tax is remitted to the Internal Revenue Service. The Accounting Firm shall furnish the Executive with a written opinion that reporting the Excise Tax, or the failure to report the Excise Tax, as applicable, on the Executive’s applicable federal income tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. Subject to Section 5.5 below, any Gross-Up Payment, as determined pursuant to this Section 5.2, shall be paid by the Company to the Executive within five (5) days of the receipt of the Accounting Firm’s determination and in any event shall be paid no later than the last day of Executive’s taxable year following the year within which the taxes related to such Gross-Up Payment are remitted to the appropriate taxing authorities. For purposes of making the calculations required by this Article 5, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(c) 5.3 and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive but in no event later than the last day of Executive’s taxable year following the year in which such Underpayment is remitted to the appropriate taxing authorities.

Determinations. Subject to the provisions of Section 9(c)6(f) hereof, all determinations required to be made under this Section 96, including whether an Excise Tax is payable by the Executive and when the amount of such Excise Tax, the Trigger Amount, the amount by which any payment or benefit to be made or provided under this Agreement should be reduced pursuant to Section 6(a) above, and whether a Gross-Up Payment is required to be paid by the Surviving Entity to the Executive and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinationPayment, if any, shall be made by the Company’s then current independent public accountants (the “Accounting Firm”) which . The Surviving Entity shall provide direct the Accounting Firm to submit its determination and detailed supporting calculations to both to the Company Surviving Entity and the Executive within 15 business fifteen (15) calendar days of after the receipt of notice from the Executive that there has been a PaymentTermination Date, if applicable, and any such other time or such earlier time times as is may be requested by the CompanySurviving Entity or the Executive. In the event that If the Accounting Firm determines that any Excise Tax is serving as accountant or auditor for payable by the individual, entity or group effecting the Change of ControlExecutive pursuant to Section 6(a) above, the Executive Surviving Entity shall appoint another nationally recognized accounting firm to make pay the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by the Company Payment to the Executive within five (5) business days of the after receipt of such determination and calculations with respect to any Payment to the Executive. If the Accounting Firm’s determination; provided, however, in Firm determines that no event shall the Gross-Up Payment be paid later than the end of the taxable year following the taxable year in which the Excise Tax is remitted to payable by the Internal Revenue Service. The Accounting Firm shall Executive, it shall, at the same time as it makes such determination, furnish the Surviving Entity and the Executive with a written an opinion that reporting the Excise Tax, or the failure Executive has substantial authority not to report the any Excise Tax, as applicable, Tax on the Executive’s applicable federal federal, state or local income or other tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executivereturn. As a result of the uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding applicable state or local tax law at the time of the initial any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company Surviving Entity should have been made (an “Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company Surviving Entity exhausts or fails to pursue its remedies pursuant to Section 9(c6(f) hereof and the Executive thereafter is required to make a payment of any Excise Tax, Tax (including if an Underpayment results because there is a determination that an Excise Tax is due (i) after having reduced the payments or benefits made or provided under this Agreement pursuant to Section 6(a) above as calculated by the Accounting Firm or (ii) where the Accounting Firm determined that the Total Parachute Payments were not subject to the Excise Tax), the Executive shall direct the Accounting Firm to determine the amount of the Underpayment that has occurred and any to submit its determination and detailed supporting calculations to both the Surviving Entity and the Executive as promptly as possible. Any such Underpayment together with any applicable interest or penalties shall be promptly paid by the Company to Surviving Entity to, or for the benefit of, the Executive within five (5) business days after receipt of such determination and calculations. Notwithstanding any other provisions to this Section 6 to the contrary, all taxes described in this Section 6 shall be paid or reimbursed no later than 30 days following the remittance of the Executiveapplicable taxes or, in the case of reimbursement of expenses incurred due to a tax audit or litigation to which there is no remittance of taxes, no later than 30 days after the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation in accordance with Treasury Regulation Section 1.409A-3(i)(v). Any expenses, including interest and penalties assessed on the taxes described in this Section 6, incurred by the Executive shall be reimbursed promptly after the Executive submits evidence of the incurrence of such expenses, which reimbursement in no event will be later than the 30 days after the end of the year in which the Executive incurs the expense, and each provision of reimbursements pursuant to this Section 6 shall be considered a separate payment and not one of a series of payments for purposes of Section 409A. Any expense reimbursed by the Company in one taxable year in no event will affect the amount of expenses required to be reimbursed by the Company in any other taxable year.

Determinations. Subject to the provisions of Section 9(c)6.3 below, all determinations required to be made under this Section 96.2, including whether and when any a Gross-Up Payment is required and required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the Company’s Corporation's then current independent public accountants auditors (the “Accounting Firm”) which "Accountants"), who shall provide detailed supporting calculations both to the Company Corporation and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is may be requested by the CompanyCorporation. In The Accountants may employ and rely upon the event that opinion of legal counsel to the Accounting Firm is serving as accountant extent they deem necessary or auditor for the individual, entity or group effecting the Change of Control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder)advisable. All fees and expenses of the Accounting Firm Accountants shall be borne solely by the CompanyCorporation. Any Gross-Up Payment, as Payment determined pursuant to this Section 9, 6 shall be paid by the Company Corporation to the Executive within five (5) business days of the Corporation's receipt of the Accounting Firm’s determination; provided, however, in Accountants' determinations. If the Accountants determine that no event shall the Gross-Up Payment be paid later than the end of the taxable year following the taxable year in which the Excise Tax is remitted to payable by the Internal Revenue Service. The Accounting Firm Executive, the Accountants shall furnish the Executive with a written opinion that reporting the Excise Tax, or the failure to report the Excise Tax, as applicable, Tax on the Executive’s 's applicable federal income tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should will not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm Accountants shall be binding upon the Company Corporation and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that If no Gross-Up Payments which will not have been Payment is made by the Company should have been Corporation or any Gross-Up Payment which is made by the Corporation is determined by the Internal Revenue Service to be insufficient to satisfy the Excise Taxes and/or all applicable income taxes incurred by the Executive on the Gross-Up Payment (“in either case, an "Underpayment”"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm Accountants shall determine the amount of the Underpayment that has occurred occurred, and any such Underpayment shall be promptly paid by the Company Corporation to or for the benefit of the Executive. The Executive shall promptly notify the Corporation in writing of any claim by the Internal Revenue Service that, if successful, would result in the assessment or collection of any Underpayment, and shall permit the Corporation to participate in any proceedings relating to such claim if the Corporation wishes to contest the Internal Revenue Service's claim. The Corporation shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with any such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses.

Determinations. Subject to the provisions of Section 9(c7(a), all determinations required to be made under this Section 97, including whether and when any a Gross-Up Payment is required and required, the amount of such Gross-Up Payment Payment, the amount of any Option Redetermination (as defined below), the reduction of the Payments to the Safe Harbor Cap and the assumptions to be utilized in arriving at such determinationdeterminations, shall be made by the Company’s then current independent public accountants accounting firm that is retained by the Company as of the date immediately prior to the Change in Control (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Company or the Executive that there has been a Payment, or such earlier time as is requested by the CompanyCompany (collectively, the “Determination”). In For the avoidance of doubt, the Accounting Firm may use the Option Redetermination amount in determining the reduction of the Payments to the Safe Harbor Cap. Notwithstanding the foregoing, in the event (i) the Board shall determine prior to the Change in Control that the Accounting Firm is precluded from performing such services under applicable auditor independence rules or (ii) the Audit Committee of the Board determines that it does not want the Accounting Firm to perform such services because of auditor independence concerns or (iii) the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of in Control, the Executive Board shall appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, Company and the Company shall be paid enter into any agreement requested by the Company to Accounting Firm in connection with the Executive within five days performance of the receipt of the Accounting Firm’s determination; provided, however, in no event shall the services hereunder. The Gross-Up Payment under this Section 7 with respect to any Payments shall be paid made no later than 30 days following such Payment. If the end of the taxable year following the taxable year in which the Accounting Firm determines that no Excise Tax is remitted to the Internal Revenue Service. The Accounting Firm payable by Executive, it shall furnish the Executive with a written opinion to such effect, and to the effect that reporting the Excise Tax, or the failure to report the Excise Tax, as applicableif any, on the Executive’s applicable federal income tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should will not result in the imposition of a negligence or similar penalty. Any determination In the event the Accounting Firm determines that the Payments shall be reduced to the Safe Harbor Cap, it shall furnish Executive with a written opinion to such effect. The Determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunderDetermination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”) or Gross-Up Payments are made by the Company which should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(c) and the Executive thereafter is required to make a payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by the Company to or for the benefit of Executive. In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse the Executive for his or her Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive (to the extent he or she has received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Company. Executive shall cooperate, to the extent his or her expenses are reimbursed by the Company, with any reasonable requests by the Company in connection with any contests or disputes with the Internal Revenue Service in connection with the Excise Tax. In the event that the Company makes a Gross-Up Payment to the Executive and subsequently the Company determines that the value of any accelerated vesting of stock options held by Executive shall be redetermined within the context of Treasury Regulation §1.280G-1 Q/A 33 (the “Option Redetermination”), Executive shall (i) file with the Internal Revenue Service an amended federal income tax return that claims a refund of the overpayment of the Excise Tax attributable to such Option Redetermination and (ii) promptly pay the refunded Excise Tax to the Company; provided that the Company shall pay all reasonable professional fees incurred in the preparation of Executive’s amended federal income tax return. In the event that amounts payable to Executive under this Agreement were reduced pursuant to the third sentence of Section 7(a) and subsequently Executive determines there has been an Option Redetermination that reduces the value of the Payments attributable to such options, the Company shall promptly pay to Executive any amounts payable under this Agreement that were not previously paid solely as a result of the third sentence of Section 7(a) up to the Safe Harbor Cap.

Determinations. Subject to the provisions of Section 9(c)6.3 below, all determinations required to be made under this Section 96.2, including whether and when any a Gross-Up Payment is required and required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the Company’s Corporation's then current independent public accountants auditors (the “Accounting Firm”) which "Accountants"), who shall provide detailed supporting calculations both to the Company Corporation and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is may be requested by the CompanyCorporation. In The Accountants may employ and rely upon the event that opinion of legal counsel to the Accounting Firm is serving as accountant extent it deems necessary or auditor for the individual, entity or group effecting the Change of Control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder)advisable. All fees and expenses of the Accounting Firm Accountants shall be borne solely by the CompanyCorporation. Any Gross-Up Payment, as Payment determined pursuant to this Section 9, 6 shall be paid by the Company Corporation to the Executive within five business days of the Corporation's receipt of the Accounting Firm’s determination; provided, however, in Accountants' determinations. If the Accountants determine that no event shall the Gross-Up Payment be paid later than the end of the taxable year following the taxable year in which the Excise Tax is remitted to payable by the Internal Revenue Service. The Accounting Firm Executive, the Accountants shall furnish the Executive with a written opinion that reporting the Excise Tax, or the failure to report the Excise Tax, as applicable, Tax on the Executive’s 's applicable federal income tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should will not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm Accountants shall be binding upon the Company Corporation and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that If no Gross-Up Payments which will not have been Payment is made by the Company should have been Corporation or any Gross-Up Payment which is made by the Corporation is determined by the Internal Revenue Service to be insufficient to satisfy the Excise Taxes and/or all applicable income taxes incurred by the Executive on the Gross-Up Payment (“in either case, an "Underpayment”"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm Accountants shall determine the amount of the Underpayment that has occurred occurred, and any such Underpayment shall be promptly paid by the Company Corporation to or for the benefit of the Executive. The Executive shall promptly notify the Corporation in writing of any claim by the Internal Revenue Service that, if successful, would result in the assessment or collection of any Underpayment, and shall permit the Corporation to participate in any proceedings relating to such claim if the Corporation wishes to contest the Internal Revenue Service's claim. The Corporation shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with any such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses.

Determinations. Subject to the provisions of Section 9(c), all All determinations required to be made under this Section 9, including whether and when any Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the Company’s then current independent public accountants accounting firm that is selected by mutual agreement of Executive and the Company and retained by the Company as of the date immediately prior to the Change in Control (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within 15 fifteen (15) business days of the receipt of notice from the Company or Executive that there has been a Payment, or such earlier time as is requested by the Company. In Notwithstanding the event foregoing, if (i) the Board shall determine prior to the Change in Control that the Accounting Firm is precluded from performing such services under applicable auditor independence rules, or (ii) the Audit Committee of the Board determines that it does not want the Accounting Firm to perform such services because of auditor independence concerns, or (iii) the Accounting Firm is serving as accountant or auditor for the individual, entity or group person(s) effecting the Change of in Control, then the Executive Board shall appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees fees, costs and expenses (including, but not limited to, the costs of retaining experts) of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by the Company If payments are reduced to the Executive within five days of the receipt of Safe Harbor Cap or the Accounting Firm’s determination; provided, however, in Firm determines that no event shall the Gross-Up Payment be paid later than the end of the taxable year following the taxable year in which the Excise Tax is remitted to payable by Executive without a reduction in payments, the Internal Revenue Service. The Accounting Firm shall furnish the Executive with provide a written opinion to Executive to such effect, that reporting the Executive is not required to report any Excise TaxTax on the Executive’s federal income tax return, or and that the failure to report the Excise Tax, as applicableif any, on the Executive’s applicable federal income tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should will not result in the imposition of a negligence or similar penalty. Any The determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty Executive (except as provided in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made paragraph (“Underpayment”c) below), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive.

Determinations. Subject to the provisions of Section 9(c6(a), all determinations required to be made under this Section 96, including whether and when any a Gross-Up Payment is required and required, the amount of such Gross-Up Payment Payment, the amount of any Option Redetermination (as defined below), the reduction of the Payments to the Safe Harbor Cap and the assumptions to be utilized in arriving at such determinationdeterminations, shall be made by the Company’s then current independent public accountants accounting firm that is retained by the Company as of the date immediately prior to the Change in Control (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Company or the Executive that there has been a Payment, or such earlier time as is requested by the CompanyCompany (collectively, the “Determination”). In For the avoidance of doubt, the Accounting Firm may use the Option Redetermination amount in determining the reduction of the Payments to the Safe Harbor Cap. Notwithstanding the foregoing, in the event (i) the Board shall determine prior to the Change in Control that the Accounting Firm is precluded from performing such services under applicable auditor independence rules or (ii) the Audit Committee of the Board determines that it does not want the Accounting Firm to perform such services because of auditor independence concerns or (iii) the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of in Control, the Executive Board shall appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, Company and the Company shall be paid enter into any agreement requested by the Company to Accounting Firm in connection with the Executive within five days performance of the receipt of the Accounting Firm’s determination; provided, however, in no event shall the services hereunder. The Gross-Up Payment under this Section 6 with respect to any Payments shall be paid made no later than 30 days following such Payment. If the end of the taxable year following the taxable year in which the Accounting Firm determines that no Excise Tax is remitted to the Internal Revenue Service. The Accounting Firm payable by Executive, it shall furnish the Executive with a written opinion to such effect, and to the effect that reporting the Excise Tax, or the failure to report the Excise Tax, as applicableif any, on the Executive’s applicable federal income tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should will not result in the imposition of a negligence or similar penalty. Any determination In the event the Accounting Firm determines that the Payments shall be reduced to the Safe Harbor Cap, it shall furnish Executive with a written opinion to such effect. The Determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunderDetermination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”) or Gross-Up Payments are made by the Company which should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(c) and the Executive thereafter is required to make a payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by the Company to or for the benefit of Executive. In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse the Executive for his or her Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive (to the extent he or she has received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Company. Executive shall cooperate, to the extent his or her expenses are reimbursed by the Company, with any reasonable requests by the Company in connection with any contests or disputes with the Internal Revenue Service in connection with the Excise Tax. In the event that the Company makes a Gross-Up Payment to the Executive and subsequently the Company determines that the value of any accelerated vesting of stock options held by Executive shall be redetermined within the context of Treasury Regulation §1.280G-1 Q/A 33 (the “Option Redetermination”), Executive shall (i) file with the Internal Revenue Service an amended federal income tax return that claims a refund of the overpayment of the Excise Tax attributable to such Option Redetermination and (ii) promptly pay the refunded Excise Tax to the Company; provided that the Company shall pay all reasonable professional fees incurred in the preparation of Executive’s amended federal income tax return. In the event that amounts payable to Executive under this Agreement were reduced pursuant to the third sentence of Section 6(a) and subsequently Executive determines there has been an Option Redetermination that reduces the value of the Payments attributable to such options, the Company shall promptly pay to Executive any amounts payable under this Agreement that were not previously paid solely as a result of the third sentence of Section 6(a) up to the Safe Harbor Cap.

Determinations. Subject to the provisions of Section 9(c)3.3, all -------------- determinations required to be made under this Section 93, including whether and when any a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Xxxxxx Xxxxxxxx LLP or such other certified public accounting firm as may be designated by the Company’s then current independent public accountants Executive (the “"Accounting Firm”") which shall provide detailed supporting calculations both to the Company and the Executive within 15 fifteen (15) business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Controlchange in control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 93, shall be paid by the Company to the Executive within five (5) days of the receipt of the Accounting Firm’s 's determination; provided, however, in no event shall the Gross-Up Payment be paid later than the end of the taxable year following the taxable year in which the Excise Tax is remitted to the Internal Revenue Service. The Accounting Firm shall furnish the Executive with a written opinion that reporting the Excise Tax, or the failure to report the Excise Tax, as applicable, on the Executive’s applicable federal income tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“"Underpayment”"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(c) 3.3 and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive.

Determinations. Subject to the provisions of Section 9(c)4.1.3, all determinations required to be made under this Section 94, including whether and when any Gross-a Gross Up Payment is required and the amount of such Gross-Gross Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the Company’s then current independent public accountants professional firm engaged by the Company for general tax purposes as of the day prior to the Change of Control (the “Accounting Tax Firm”) which will perform any calculations necessary or advisable in compliance with this Section. If the Tax Firm so engaged by the Company is serving as accountant or auditor for the acquiring company, the Company will appoint a nationally recognized Tax Firm to make the determinations required by this Section. The Tax Firm shall provide detailed supporting calculations to both to the Company and the Executive within 15 business forty five (45) days of the receipt of written notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Gross Up Payment, as determined pursuant to this Section 94, shall be paid by the Company to the Executive within five thirty (30) days of the receipt of the Accounting Tax Firm’s determination; provided, however, determination and in any event no event shall the Gross-Up Payment be paid later than the end of the taxable calendar year immediately following the taxable calendar year in which Executive remits the Excise Tax is remitted to the Internal Revenue Service. The Accounting Firm shall furnish the Executive with a written opinion that reporting the Excise Tax, or the failure to report the Excise Tax, as applicable, on the Executive’s applicable federal income tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should not result in the imposition of a negligence or similar penaltytaxes. Any determination by the Accounting Tax Firm shall be binding upon the Company and the Executive. As a result of the possible uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Tax Firm hereunder, it is possible that Gross-Gross Up Payments which will not have been made by the Company that should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(c) 4.1.3 and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Tax Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive and in any event no later the Executiveend of the calendar year immediately following the calendar year in which Executive remits the applicable taxes.

Determinations. Subject to the provisions of Section 9(c6(a), all determinations required to be made under this Section 96, including whether and when any a Gross-Up Payment is required and required, the amount of such Gross-Up Payment Payment, the amount of any Option Redetermination (as defined below), the reduction of the Payments to the Safe Harbor Cap and the assumptions to be utilized in arriving at such determinationdeterminations, shall be made by the Company’s then current independent public accountants accounting firm that is retained by the Company as of the date immediately prior to the Change in Control (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Company or the Executive that there has been a Payment, or such earlier time as is requested by the CompanyCompany (collectively, the “Determination”). In For the avoidance of doubt, the Accounting Firm may use the Option Redetermination amount in determining the reduction of the Payments to the Safe Harbor Cap. Notwithstanding the foregoing, in the event (i) the Board shall determine prior to the change in control that the Accounting Firm is precluded from performing such services under applicable auditor independence rules or (ii) the Audit Committee of the Board determines that it does not want the Accounting Firm to perform such services because of auditor independence concerns or (iii) the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Controlchange in control, the Executive Board shall appoint another a nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, Company and the Company shall be paid enter into any agreement requested by the Company to Accounting Firm in connection with the Executive within five days performance of the receipt of the Accounting Firm’s determination; provided, however, in no event shall the services hereunder. The Gross-Up Payment under this Section 6 with respect to any Payments shall be paid made no later than 30 days following such Payment. If the end of the taxable year following the taxable year in which the Accounting Firm determines that no Excise Tax is remitted to the Internal Revenue Service. The Accounting Firm payable by Executive, it shall furnish the Executive with a written opinion to such effect, and to the effect that reporting the Excise Tax, or the failure to report the Excise Tax, as applicableif any, on the Executive’s applicable federal income tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should will not result in the imposition of a negligence or similar penalty. Any determination In the event the Accounting Firm determines that the Payments shall be reduced to the Safe Harbor Cap, it shall furnish Executive with a written opinion to such effect. The Determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunderDetermination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”) or Gross-Up Payments are made by the Company which should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(c) and the Executive thereafter is required to make a payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by the Company to or for the benefit of Executive. In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse the Executive for his or her Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive (to the extent he or she has received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Company. Executive shall cooperate, to the extent his or her expenses are reimbursed by the Company, with any reasonable requests by the Company in connection with any contests or disputes with the Internal Revenue Service in connection with the Excise Tax. In the event that the Company makes a Gross-Up Payment to the Executive and subsequently the Company determines that the value of any accelerated vesting of stock options held by Executive shall be re-determined within the context of Treasury Regulation §1.280G-1 Q/A 33 (the “Option Redetermination”), Executive shall (i) file with the Internal Revenue Service an amended federal income tax return that claims a refund of the overpayment of the Excise Tax attributable to such Option Redetermination and (ii) promptly pay the refunded Excise Tax to the Company; provided that the Company shall pay all reasonable professional fees incurred in the preparation of Executive’s amended federal income tax return. In the event that amounts payable to Executive under this Agreement were reduced pursuant to the third sentence of Section 6(a) and subsequently Executive determines there has been an Option Redetermination that reduces the value of the Payments attributable to such options, the Company shall promptly pay to Executive any amounts payable under this Agreement that were not previously paid solely as a result of the third sentence of Section 6(a) up to the Safe Harbor Cap.

Determinations. Subject to the provisions of Section 9(c)20.3, all determinations required to be made under this Section 920, including whether and when any Grossa GROSS-Up Payment UP PAYMENT is required and required, the amount of such GrossGROSS-Up Payment UP PAYMENT, and the assumptions to be utilized in arriving at such determination, shall be made by Golden Parachute Tax Solutions LLC or a nationally recognized certified public accounting firm as may be mutually agreed in writing by the Company’s then current independent public accountants EMPLOYER and the EXECUTIVE (the “Accounting FirmDETERMINATION FIRM”) which ). The DETERMINATION FIRM shall provide detailed supporting calculations both to the Company EMPLOYER and the Executive EXECUTIVE within 15 business days of the receipt of notice from the Executive EXECUTIVE that there has been a Payment, PAYMENT or such earlier time as is requested by the CompanyEMPLOYER. In the event that the Accounting Firm DETERMINATION FIRM is serving as consultant, accountant or auditor for the individual, entity entity, or group effecting the Change change of Controlcontrol, the Executive shall EXECUTIVE may appoint another a nationally recognized accounting firm other than the DETERMINATION FIRM to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm DETERMINATION FIRM hereunder). All fees and expenses of the Accounting Firm DETERMINATION FIRM shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination; provided, however, in no event shall the Gross-Up Payment be paid later than the end of the taxable year following the taxable year in which the Excise Tax is remitted to the Internal Revenue Service. The Accounting Firm shall furnish the Executive with a written opinion that reporting the Excise Tax, or the failure to report the Excise Tax, as applicable, on the Executive’s applicable federal income tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should not result in the imposition of a negligence or similar penaltyEMPLOYER. Any determination by the Accounting Firm DETERMINATION FIRM shall be binding upon the Company EMPLOYER and the ExecutiveEXECUTIVE. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm DETERMINATION FIRM hereunder, it is possible that GrossGROSS-Up Payments which UP PAYMENTS that will not have been made by the Company EMPLOYER should have been made (the “UnderpaymentUNDERPAYMENT”), consistent with the calculations required to be made hereunder. In the event that the Company EMPLOYER exhausts its remedies pursuant to Section 9(c) 20.3 and the Executive EXECUTIVE thereafter is required to make a payment of any Excise TaxEXCISE TAX, the Accounting Firm DETERMINATION FIRM shall determine the amount of the Underpayment UNDERPAYMENT that has occurred and any such Underpayment UNDERPAYMENT shall be promptly paid by the Company EMPLOYER to or for the benefit of the ExecutiveEXECUTIVE.

Determinations. Subject to the provisions of Section 9(c)6.3, all determinations required to be made under this Section 96, including whether and when any a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the Company’s then current independent nationally recognized certified public accountants accounting firm used by the Company immediately prior to the effective date of the Change in Control or, if such firm declines to serve, such other nationally recognized certified public accounting firm as may be designated by the Executive (the “Accounting Firm”) which ). The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. Subject to Section 6.5 below, any Gross-Up Payment, as determined pursuant to this Section 96.2, shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination; provided, however, determination and in no any event shall be paid no later than the last day of Executive’s taxable year following the year within which the taxes related to such Gross-Up Payment be paid later than the end of the taxable year following the taxable year in which the Excise Tax is are remitted to the Internal Revenue Serviceappropriate taxing authorities. The Accounting Firm shall furnish For purposes of making the Executive with a written opinion that reporting the Excise Taxcalculations required by this Section 6, or the failure to report the Excise Tax, as applicable, on the Executive’s applicable federal income tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should not result in may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the imposition application of a negligence or similar penalty. Any determination by Sections 280G and 4999 of the Accounting Firm shall be binding upon the Company and the ExecutiveCode. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(c) 6.3 and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive but in no event later than the last day of Executive’s taxable year following the year in which such Underpayment is remitted to the appropriate taxing authorities.

Determinations. Subject to the provisions of Section 9(c)8.3 below, all determinations required to be made under this Section 98.2, including whether and when any a Gross-Up Payment is required and required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by an independent accounting firm reasonably acceptable to the Company’s then current independent public accountants Company and the Executive (the “"Accounting Firm”) "), which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is may be requested by the Company. The Accounting Firm may employ and rely upon the opinions of actuarial or accounting professionals to the extent it deems necessary or advisable. In the event that the Accounting Firm determines for any reason that it is serving as accountant unable to perform such services, or auditor for the individual, entity or group effecting the Change of Controldeclines to do so, the Executive Company shall appoint select another nationally recognized accounting firm to make the determinations required hereunder under this section (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as Payment determined pursuant to this Section 9, 8.4 shall be paid by the Company to the Executive within five business days of the Company's receipt of the Accounting Firm’s determination; provided's determinations. If the Accounting Firm determines that no Excise tax should be payable by the Executive, however, in no event shall the Gross-Up Payment be paid later than the end of the taxable year following the taxable year in which the Excise Tax is remitted to the Internal Revenue Service. The Accounting Firm shall be requested to furnish the Executive with a written opinion that reporting the Excise Tax, or the failure to report the Excise Tax, as applicable, Tax on the Executive’s 's applicable federal income tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the possible uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made or that the Gross-Up Payments which are made by the Company will be insufficient to satisfy the Excise Taxes and/or all applicable income taxes incurred by the Executive on the Gross-Up Payments (“in either case, an "Underpayment”"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive.Company

Determinations. Subject to the provisions of Section 9(c6(a), all determinations required to be made under this Section 96, including whether and when any a Gross-Up Payment is required and required, the amount of such Gross-Up Payment Payment, the amount of any Option Redetermination (as defined below), the reduction of the Payments to the Safe Harbor Cap and the assumptions to be utilized in arriving at such determinationdeterminations, shall be made by the Company’s then current independent public accountants accounting firm that is retained by the Company as of the date immediately prior to the Change in Control (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Company or the Executive that there has been a Payment, or such earlier time as is requested by the CompanyCompany (collectively, the “Determination”). In For the avoidance of doubt, the Accounting Firm may use the Option Redetermination amount in determining the reduction of the Payments to the Safe Harbor Cap. Notwithstanding the foregoing, in the event (i) the Board shall determine prior to the change in control that the Accounting Firm is precluded from performing such services under applicable auditor independence rules or (ii) the Audit Committee of the Board determines that it does not want the Accounting Firm to perform such services because of auditor independence concerns or (iii) the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Controlchange in control, the Executive Board shall appoint another a nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, Company and the Company shall be paid enter into any agreement requested by the Company to Accounting Firm in connection with the Executive within five days performance of the receipt of the Accounting Firm’s determination; provided, however, in no event shall the services hereunder. The Gross-Up Payment under this Section 6 with respect to any Payments shall be paid made no later than 30 days following such Payment. If the end of the taxable year following the taxable year in which the Accounting Firm determines that no Excise Tax is remitted to the Internal Revenue Service. The Accounting Firm payable by Executive, it shall furnish the Executive with a written opinion to such effect, and to the effect that reporting the Excise Tax, or the failure to report the Excise Tax, as applicableif any, on the Executive’s applicable federal income tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should will not result in the imposition of a negligence or similar penalty. Any determination In the event the Accounting Firm determines that the Payments shall be reduced to the Safe Harbor Cap, it shall furnish Executive with a written opinion to such effect. The Determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunderDetermination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”) or Gross-Up Payments are made by the Company which should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(c) and the Executive thereafter is required to make a payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by the Company to or for the benefit of Executive. In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse the Executive for his or her Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive (to the extent he or she has received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Company. Executive shall cooperate, to the extent his or her expenses are reimbursed by the Company, with any reasonable requests by the Company in connection with any contests or disputes with the Internal Revenue Service in connection with the Excise Tax. In the event that the Company makes a Gross-Up Payment to the Executive and subsequently the Company determines that the value of any accelerated vesting of stock options held by Executive shall be redetermined within the context of Treasury Regulation §1.280G-1 Q/A 33 (the “Option Redetermination”), Executive shall (i) file with the Internal Revenue Service an amended federal income tax return that claims a refund of the overpayment of the Excise Tax attributable to such Option Redetermination and (ii) promptly pay the refunded Excise Tax to the Company; provided that the Company shall pay all reasonable professional fees incurred in the preparation of Executive’s amended federal income tax return. In the event that amounts payable to Executive under this Agreement were reduced pursuant to the third sentence of Section 6(a) and subsequently Executive determines there has been an Option Redetermination that reduces the value of the Payments attributable to such options, the Company shall promptly pay to Executive any amounts payable under this Agreement that were not previously paid solely as a result of the third sentence of Section 6(a) up to the Safe Harbor Cap.

Determinations. Subject to the provisions of Section 9(c)5.3 below, all determinations required to be made under this Section 95, including whether and when any a Gross-Up Payment is required and required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the CompanyCorporation’s then current acting independent certified public accountants accounting firm at the Effective Date (the “Accounting Tax Firm”) ), which shall provide detailed supporting calculations both to the Company Corporation and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is may be requested by the CompanyCorporation. The Tax Firm may employ and rely upon the opinions of actuarial or legal professionals to the extent it deems necessary or advisable. In the event that the Accounting Tax Firm determines for any reason that it is serving as accountant unable to perform such services, or auditor for the individual, entity or group effecting the Change of Controldeclines to do so, the Executive Corporation shall appoint select another nationally recognized law or accounting firm to make the determinations required hereunder under this section (which accounting firm shall then be referred to as the Accounting Tax Firm hereunder). All fees and expenses of the Accounting Tax Firm shall be borne solely by the CompanyCorporation. Any Gross-Up Payment, as Payment determined pursuant to this Section 9, 5 shall be paid by the Company Corporation to the Executive within five business days of the Corporation’s receipt of the Accounting Tax Firm’s determination; provided, however, in determinations. If the Tax Firm determines that no event shall the Gross-Up Payment be paid later than the end of the taxable year following the taxable year in which the Excise Tax is remitted to should be payable by the Internal Revenue Service. The Accounting Executive, the Tax Firm shall be requested to furnish the Executive with a written opinion that reporting the Excise Tax, or the failure to report the Excise Tax, as applicable, Tax on the Executive’s applicable federal income tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Tax Firm shall be binding upon the Company Corporation and the Executive. As a result of the possible uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Tax Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company Corporation should have been made or that the Gross-Up Payments which are made by the Corporation will be insufficient to satisfy the Excise Tax (an “Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company Corporation exhausts its remedies pursuant to Section 9(c) 5.3, and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Tax Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company Corporation to or for the benefit of the Executive.

Determinations. Subject to the provisions of Section 9(c)) below, all determinations required to be made under this Section 9, including whether and when any an Excise Tax Gross-Up Payment is required and required, the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Company’s then current independent public accountants Company (the “Accounting Firm”) which ); provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive within 15 fifteen business days of the receipt of notice from the Executive that there has been a Payment, Payment or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by the Company to the Executive within five fifteen days of the receipt of the Accounting Firm’s determination; provided, however, in no event shall the Gross-Up Payment be paid later than the end of the taxable year following the taxable year in which the Excise Tax is remitted to the Internal Revenue Service. The Accounting Firm shall furnish the Executive with a written opinion that reporting the Excise Tax, or the failure to report the Excise Tax, as applicable, on the Executive’s applicable federal income tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and Executive, unless the Company obtains an opinion of outside legal counsel, based upon at least “substantial authority” within the meaning of Section 6662 of the Code, reaching a different determination, in which event such legal opinion shall be binding upon the Company and Executive. As a result of Notwithstanding anything herein to the uncertainty contrary, in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that no event shall any Excise Tax Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required Payment to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company under this Section 9 be made later than the end of Executive’s taxable year next following Executive’s taxable year in which Executive remits the related taxes. Any costs and expenses incurred by the Company on behalf of Executive under this Section 9 due to any tax contest, audit or for litigation will be paid by the benefit Company promptly, and in no event later than the end of Executive’s taxable year following Executive’s taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Executive’s taxable year following Executive’s taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation.

Determinations. Subject to the provisions of Section 9(c11(c), all determinations required to be made under this Section 911, including whether and when any a Gross-Up Payment is required and required, the amount of such Gross-Up Payment Payment, and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm as may be designated by the Company’s then current independent public accountants Employee (the “Accounting Firm”) which ). The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive Employee within 15 business days of the receipt of notice from the Executive Employee that there has been a Payment, Payment or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity entity, or group effecting the Change change of Controlcontrol, the Executive shall Employee may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination; provided, however, in no event shall the Gross-Up Payment be paid later than the end of the taxable year following the taxable year in which the Excise Tax is remitted to the Internal Revenue Service. The Accounting Firm shall furnish the Executive with a written opinion that reporting the Excise Tax, or the failure to report the Excise Tax, as applicable, on the Executive’s applicable federal income tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the ExecutiveEmployee. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which that will not have been made by the Company should have been made (the “Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(c11(c) and the Executive Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive.Employee. Exhibit 10.26 Fourth Amendment to Existing Employment Agreement between First Trinity Financial Corporation and Xxxxx X. Xxxx, dated September 5, 2017

Determinations. Subject to the provisions of Section 9(c)3.3, -------------- all determinations required to be made under this Section 93, including whether and when any a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Xxxxxx Xxxxxxxx LLP or such other certified public accounting firm as may be designated by the Company’s then current independent public accountants Executive (the “"Accounting Firm”") which shall provide detailed supporting calculations both to the Company and the Executive within 15 fifteen (15) business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Controlchange in control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 93, shall be paid by the Company to the Executive within five (5) days of the receipt of the Accounting Firm’s 's determination; provided, however, in no event shall the Gross-Up Payment be paid later than the end of the taxable year following the taxable year in which the Excise Tax is remitted to the Internal Revenue Service. The Accounting Firm shall furnish the Executive with a written opinion that reporting the Excise Tax, or the failure to report the Excise Tax, as applicable, on the Executive’s applicable federal income tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“"Underpayment”"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(c) 3.3 and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive.

Determinations. Subject to the provisions of Section 9(c)5.3 below, all determinations required to be made under this Section 95, including whether and when any a Gross-Up Payment is required and required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the Company’s Corporation's then current acting independent certified public accountants accounting firm at the Effective Date (the “Accounting "Tax Firm”) "), which shall provide detailed supporting calculations both to the Company Corporation and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is may be requested by the CompanyCorporation. The Tax Firm may employ and rely upon the opinions of actuarial or legal professionals to the extent it deems necessary or advisable. In the event that the Accounting Tax Firm determines for any reason that it is serving as accountant unable to perform such services, or auditor for the individual, entity or group effecting the Change of Controldeclines to do so, the Executive Corporation shall appoint select another nationally recognized law or accounting firm to make the determinations required hereunder under this section (which accounting firm shall then be referred to as the Accounting Tax Firm hereunder). All fees and expenses of the Accounting Tax Firm shall be borne solely by the CompanyCorporation. Any Gross-Up Payment, as Payment determined pursuant to this Section 9, 5 shall be paid by the Company Corporation to the Executive within five business days of the Corporation's receipt of the Accounting Tax Firm’s determination; provided, however, in 's determinations. If the Tax Firm determines that no event shall the Gross-Up Payment be paid later than the end of the taxable year following the taxable year in which the Excise Tax is remitted to should be payable by the Internal Revenue Service. The Accounting Executive, the Tax Firm shall be requested to furnish the Executive with a written opinion that reporting the Excise Tax, or the failure to report the Excise Tax, as applicable, Tax on the Executive’s 's applicable federal income tax return in accordance with the determination made by the Accounting Firm pursuant to this Section 9(b) should would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Tax Firm shall be binding upon the Company Corporation and the Executive. As a result of the possible uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Tax Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company Corporation should have been made or that the Gross-Up Payments which are made by the Corporation will be insufficient to satisfy the Excise Taxes and/or all applicable income and employment taxes incurred by the Executive on the Gross-Up Payments (“in either case, an "Underpayment”"), consistent with the calculations required to be made hereunder. In the event that the Company Corporation exhausts its remedies pursuant to Section 9(c) 5.3, and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Tax Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company Corporation to or for the benefit of the Executive.