Common use of Excise Tax Gross-Up Payment Clause in Contracts

Excise Tax Gross-Up Payment. (i) In the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to this Agreement (a "Payment"), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the "Excise Tax"), then Grantee shall be entitled to receive an additional payment (the "Excise Tax Gross-Up Payment") in an amount such that, after payment by Grantee of all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax Gross-Up Payment, Grantee retains an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee shall be considered to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence on the date on which the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(n), net of Grantee's actual reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and taking into consideration the phase-out of Grantee's itemized deductions under federal income tax law.

Excise Tax Gross-Up Payment. (i) In If any payments made and/or benefits --------------------------- provided to the event it shall be determined that any payment Executive by the Company, whether or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to not under this Agreement (a "PaymentPayments"), would be are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise taxCode, the "Excise Tax"), then Grantee Company shall be entitled pay to receive the Executive an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount Payments. The determination of the Excise Tax Gross-Up Payment equal whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee's actual reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and taking into consideration the phase-out of Grantee's itemized deductions under federal income tax lawimposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (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 Payments.

Excise Tax Gross-Up Payment. (i) In If any payments to the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of Executive by --------------------------- the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to under this Agreement (a "PaymentPayments"), would be ) are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise taxCode, the "Excise Tax"), then Grantee Company shall be entitled pay to receive the Executive an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount Payments. The determination of the Excise Tax Gross-Up Payment equal whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee's actual reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and taking into consideration the phase-out of Grantee's itemized deductions under federal income tax lawimposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (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 Payments.

Excise Tax Gross-Up Payment. (i) In If any payments to the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in Executive by the nature of compensation and is contingent on a change in the ownership or effective control of the --------------------------- Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to under this Agreement (a "PaymentPayments"), would be ) are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise taxCode, the "Excise Tax"), then Grantee Company shall be entitled pay to receive the Executive an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount Payments. The determination of the Excise Tax Gross-Up Payment equal whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee's actual reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and taking into consideration the phase-out of Grantee's itemized deductions under federal income tax lawimposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (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 Payments.

Excise Tax Gross-Up Payment. (i) In If the event it shall be determined that total of all payments made to the Employee pursuant to this Agreement, together with any payment or distribution other payments which the Employee has a right to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of receive from the Company (within or any affiliates or subsidiaries of the meaning Company) result in the imposition of an excise tax under Section 280G(b)(24999 (or any successor thereto) of the Code)Internal Revenue Code of 1986, paid or payable pursuant to this Agreement (a "Payment")as amended, would be subject (in whole or in part) to the Company shall pay the Employee an additional excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the "Excise Tax"), then Grantee shall be entitled to receive an additional adjustment payment (the "Excise Tax Gross-Up Payment") in an amount such that, after the payment by Grantee of all taxes federal and state income and excise taxes, the Employee will be in the same after-tax position as if no excise tax had been imposed. Any payment or benefit which is required to be included under Section 280G or 4999 (and or any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax Gross-Up Payment, Grantee retains an amount successor provisions thereto) of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For Internal Revenue Code for purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee whether an excise tax is payable shall be considered deemed a payment "made to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in Employee" or a payment "which the Excise Tax Gross-Up Payment is Employee has a right to be made, and state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence on the date on which the Excise Tax Gross-Up Payment is calculated, receive" for purposes of this Section 8(n)provision. The Company shall be responsible for the cost of calculation of the excise tax by its independent certified accountant and tax counsel and shall notify the Employee of the amount of excise tax due prior to the time such excise tax is due. If at any time it is determined that the additional excise tax adjustment payment previously made to the Employee was insufficient to cover the effect of the excise tax, net the excise tax gross-up payment pursuant to this provision shall be increased to make the Employee whole, including an amount to cover the payment of Grantee's actual reduction in federal income taxes which could be obtained any penalties resulting from deduction incorrect or late payment of such state and local taxes, and taking into consideration the phase-out of Grantee's itemized deductions under federal income excise tax lawresulting from the prior calculation.

Excise Tax Gross-Up Payment. (i) In If any payments to the event it shall be determined that any payment Executive by the Company, whether or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to not under this Agreement (a "PaymentPayments"), would be become subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (together with any interest or penalties imposed with respect to such excise tax, the "Excise TaxCode"), then Grantee shall be entitled to receive the Company shall, as soon as reasonably practicable thereafter, make an additional cash payment to the Executive (the "Excise Tax Gross-Up Payment") in an amount such thatthat the net amount retained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount of the Excise Tax Gross-Up Payment equal Payments. The determination of whether any Payments are subject to the Excise Tax imposed shall be based upon the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiciton in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee's actual reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and taking into consideration the phase-out of Grantee's itemized deductions under federal income tax lawimposed 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 and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceeed the amount taken into account hereunder at the time of the termination of the Executive's employment (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 Payments.

Excise Tax Gross-Up Payment. (i) In If any payments made and/or benefits --------------------------- provided to the event it shall be determined that any payment Executive by the Company, whether or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to not under this Agreement (a "PaymentPayments"), would be are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise taxCode, the "Excise Tax"), then Grantee Company shall be entitled pay to receive the Executive an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount Payments. The determination of the Excise Tax Gross-Up Payment equal whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee's actual reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and taking into consideration the phase-out of Grantee's itemized deductions under federal income tax lawimposed on the Gross- Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (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 Payments.

Excise Tax Gross-Up Payment. (ia) In Except as set forth below, in the event it shall be determined that any payment or distribution to Grantee you or for Grantee's your benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company REIT or the ownership of a substantial portion of the assets of the Company REIT (within the meaning of Section 280G(b)(2) of the Code), whether paid or payable pursuant to this Agreement or otherwise (a "“Payment"”), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the "“Excise Tax"”), then Grantee you shall be entitled to receive an additional payment (the "“Excise Tax Gross-Up Payment"”) in an amount such that, after payment by Grantee you of all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax Gross-Up Payment, Grantee retains you retain an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding anything contained herein, if it shall be determined that you are entitled to the Excise Tax Gross-Up Payment, but that the Parachute Value (as defined below) of all Payments does not exceed 110% of an amount equal to 2.99 times your “base amount,” within the meaning of Section 280G(b)(3) of the Code (the “Safe Harbor Amount”), then no Excise Tax Gross-Up Payment shall be made to you and the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made in such a manner as to maximize the economic present value as of the date of the change in control transaction of all Payments actually made to you. For purposes of this Agreement, the “Parachute Value” of a Payment shall mean the present value as of the date of the change in control transaction for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) 8 shall not be conditioned upon Grantee's Separation your termination of employment or your “separation from Serviceservice” (within the meaning of Section 409A(a)(2)(A)(i) of the Code). For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee you shall be considered to pay federal income tax at Grantee's your actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, made and state and local income taxes at Grantee's your actual marginal rate of taxation in the state and locality of Grantee's your residence on the date on which the Excise Tax Gross-Up Payment is calculated, calculated for purposes of this Section 8(n)8, net of Grantee's your actual reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and taking into consideration the phase-out of Grantee's your itemized deductions under federal income tax law.

Excise Tax Gross-Up Payment. Mattel recognizes that the Executive will receive, as a result of the Merger, payments (ior benefits) In the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is that are contingent on a change in the ownership or effective control of the The Learning Company or the ownership of a substantial portion of the assets of the Company (and that may constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended, (the "Code), paid or payable pursuant to this Agreement ") (a "PaymentChange of Control Payments"), would and that such payments may be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (together with Code. Mattel agrees to pay immediately to the Executive upon receipt of any interest or penalties imposed with respect to such excise tax, the "Excise Tax"), then Grantee shall be entitled to receive Change of Control Payments an additional payment amount (the "Excise Tax Gross-Up Paymentup payment") equal to the sum of (x) the excise tax imposed on the Change in an amount such thatControl Payments, after payment by Grantee of all (y) the excise tax imposed on the Gross-up payment, and (z) the federal, state and local income taxes (imposed upon the Gross-up payment, and any interest or and penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax thereon. The Gross-Up Payment, Grantee retains an amount up payment shall place the Executive in the same after-tax financial position in which he would have been if he had not incurred any tax liability under Section 4999 of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from ServiceCode. For purposes of determining the amount of any Excise Tax the Gross-Up Paymentup payment, Grantee the Executive shall be considered deemed to pay federal income tax taxes at Grantee's actual the highest marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment up payment is to be made, made and state and local income taxes at Grantee's actual the highest marginal rate of taxation in the state and the locality of Granteethe Executive's residence on the date on which the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(n)termination, net of Grantee's actual the maximum reduction in federal income taxes which could can be obtained from the deduction of such state and local taxes. In the event that the excise tax is subsequently determined to be less than the amount taken into account hereunder at the time the Change of Control Payments are made, the Executive shall repay to Mattel at the time that the amount of such reduction and excise tax is finally determined, the portion of the Gross-up payment attributable to such reduction (plus the portion of the Gross-up payment attributable to the excise tax and federal, state, and taking into consideration the phase-out of Grantee's itemized deductions under federal local income tax lawimposed on the Gross-up payment being repaid by the Executive, if such repayment results in a reduction in excise tax or in federal, state, and local income tax deductions) plus interest on the amount of such repayment at the rate provided in Section 1274(d) of the Code. In the event that the excise tax is determined to exceed the amount taken into account hereunder at the time the Change of Control Payments are made (including by reason of any payment the existence or amount of which cannot be determined at the time the Gross-up payment is made), Mattel shall make an additional Gross-up payment in respect to such excess (plus any interest payable with respect to such excess) at the time that the amount of such excess is finally determined.

Excise Tax Gross-Up Payment. (i) In If any payments to the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of Executive by --------------------------- the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to under this Agreement (a "PaymentPayments"), would be ) are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (together with any interest or penalties imposed with respect to such excise tax, the "Excise TaxCode"), then Grantee the Company shall be entitled pay to receive the Executive an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount of the Excise Tax Gross-Up Payment equal Payments. The determination whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee's actual reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and taking into consideration the phase-out of Grantee's itemized deductions under federal income tax lawimposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (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 Payments.

Excise Tax Gross-Up Payment. (i) In If any payments to the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of Executive by --------------------------- the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to under this Agreement (a "PaymentPayments"), would be ) are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise taxCode, the "Excise Tax"), then Grantee Company shall be entitled pay to receive the Executive an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount Payments. The determination of the Excise Tax Gross-Up Payment equal whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay the Company, at the time that the amount of such reduction of Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b) (2) (B) of the Code. In the event that the Excise Tax is calculated, for purposes determined to exceed the amount taken into account hereunder at the time of this Section 8(nthe termination of the Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), net of Grantee's actual reduction the Company shall make an additional Gross-Up Payment in federal income taxes which could be obtained from deduction respect of such state 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 local taxes, and taking into consideration the phase-out Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of Grantee's itemized deductions under federal income tax lawliability for Excise Tax with respect to the Payments.

Excise Tax Gross-Up Payment. (ia) In Except as set forth below, in the event it shall be determined that any payment or distribution to Grantee you or for Grantee's your benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company REIT or the ownership of a substantial portion of the assets of the Company REIT (within the meaning of Section 280G(b)(2) of the Code), whether paid or payable pursuant to this Agreement or otherwise (a "“Payment"”), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the "“Excise Tax"”), then Grantee you shall be entitled to receive an additional payment (the "“Excise Tax Gross-Up Payment"”) in an amount such that, after payment by Grantee you of all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax Gross-Up Payment, Grantee retains you retain an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding anything contained herein, if it shall be determined that you are entitled to the Excise Tax Gross-Up Payment, but that the Parachute Value (as defined below) of all Payments does not exceed 110% of an amount equal to 2.99 times your “base amount,” within the meaning of Section 280G(b)(3) of the Code (the “Safe Harbor Amount”), then no Excise Tax Gross-Up Payment shall be made to you and the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made in such a manner as to maximize the economic present value as of the date of the change in control transaction of all Payments actually made to you. For purposes of this Agreement, the “Parachute Value” of a Payment shall mean the present value as of the date of the change in control transaction for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) 8 shall not be conditioned upon Grantee's your Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee you shall be considered to pay federal income tax at Grantee's your actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's your actual marginal rate of taxation in the state and locality of Grantee's your residence on the date on which the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(n)8, net of Grantee's your actual reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and taking into consideration the phase-out of Grantee's your itemized deductions under federal income tax law.

Excise Tax Gross-Up Payment. (i) In the event it shall be determined that If any payment to the Executive by the Company, whether or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to not under this Agreement (a "Payment"), would be becomes subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code Code, the Company shall, as soon as reasonably practicable thereafter after written notice thereof to the Board, make an additional cash payment to the Executive (together with the "Gross-Up Payment"); provided that such payment will be made no later than the end of the calendar year following the calendar year in which such Excise Tax is paid. The Gross-up Payment shall equal the amount, if any, needed to ensure that the net Payments (including the Gross-up Payment) actually received by Executive after the imposition of federal and state income and excise taxes (including any interest or penalties imposed with respect to such excise tax, by the "Excise Tax"Internal Revenue Service), then Grantee shall be entitled is equal to receive an additional payment (the "Excise Tax Gross-Up Payment") in an amount such that, that Executive would have netted after payment by Grantee the imposition of all taxes (federal and any interest or penalties imposed with respect to such taxes), including, without limitation, any state income taxes and Excise Tax had the Payments not been subject to the taxes imposed upon the Excise Tax Gross-Up Payment, Grantee retains an amount by Section 4999. The determination of the Excise Tax Gross-Up whether any Payment equal is subject to the Excise Tax imposed shall be based upon the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee's actual reduction in federal income taxes which could be obtained from deduction of such state and local taxesincome tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to any Payment, and taking into consideration the phase-out of GranteeExecutive agrees to take all actions reasonably requested by the Company relating to any Internal Revenue Service claim with respect to any such Excise Tax liability to allow the Company to timely contest such claim, at the Company's itemized deductions under federal income tax lawsole discretion and expense.

Excise Tax Gross-Up Payment. (i) In If any payments to Executive by the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the --------------------------- Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to under this Agreement or otherwise (a "PaymentPayments"), would be ) are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (together with any interest or penalties imposed with respect to such excise tax, the "Excise TaxCode"), then Grantee the Company shall be entitled pay to receive Executive an additional payment amount (the a "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax such Gross-Up Payment, Grantee retains an amount of shall be equal to the Excise Tax Gross-Up Payment equal Payments. The determination whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be madefederal, and state and local income taxes at Grantee's actual the highest marginal rate of taxation in rates. In the state and locality of Grantee's residence on the date on which event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, at the time that the amount of such reduction is finally deter mined, the Executive shall repay the Company the portion of the Gross-Up Payment is calculatedattributable to such reduction (plus that portion of the Gross-Up Payment attributable to the tax on the portion of the Gross-Up Payment being repaid, for purposes of this Section 8(n), net of Grantee's actual to the extent the repayment results in a reduction in federal income taxes which could be obtained from deduction tax) plus interest on the amount of such state repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is deter mined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment, the Company shall make an additional Gross-Up Payment in respect to such excess, together with interest, penalties or additions payable by the Executive with respect thereto (and local taxes, taxes payable by Executive as a result of such additional Gross-Up Payment) at the time such excess is finally determined. Executive and taking into consideration the phase-out Company shall each reasonably cooperate with each other in connection with any administrative or judicial proceedings concerning the existence or amount of Grantee's itemized deductions under federal income tax lawliability for Excise Tax with respect to the Payments.

Excise Tax Gross-Up Payment. (i) In the event it shall be determined that If any payment to the Executive by the Company, whether or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to not under this Agreement (a "Payment"), would be becomes subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code Code, the Company shall, as soon as reasonably practicable thereafter after written notice thereof to the Board, make an additional cash payment to the Executive (together with the "Gross-Up Payment"). The Gross-up Payment shall equal the amount, if any, needed to ensure that the net Payments (including the Gross-up Payment) actually received by Executive after the imposition of federal and state income and excise taxes (including any interest or penalties imposed with respect to such excise tax, by the "Excise Tax"Internal Revenue Service), then Grantee shall be entitled is equal to receive an additional payment (the "Excise Tax Gross-Up Payment") in an amount such that, that Executive would have netted after payment by Grantee the imposition of all taxes (federal and any interest or penalties imposed with respect to such taxes), including, without limitation, any state income taxes and Excise Tax had the Payments not been subject to the taxes imposed upon the Excise Tax Gross-Up Payment, Grantee retains an amount by Section 4999. The determination of the Excise Tax Gross-Up whether any Payment equal is subject to the Excise Tax imposed shall be based upon the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee's actual reduction in federal income taxes which could be obtained from deduction of such state and local taxesincome tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to any Payment, and taking into consideration the phase-out of GranteeExecutive agrees to take all actions reasonably requested by the Company relating to any Internal Revenue Service claim with respect to any such Excise Tax liability to allow the Company to timely contest such claim, at the Company's itemized deductions under federal income tax lawsole discretion and expense.

Excise Tax Gross-Up Payment. (ia) In Except as set forth below, in the event it shall be determined that any payment or distribution to Grantee you or for Grantee's your benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company REIT or the ownership of a substantial portion of the assets of the Company REIT (within the meaning of Section 280G(b)(2) of the Code), whether paid or payable pursuant to this Agreement letter or otherwise (a "“Payment"”), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the "“Excise Tax"”), then Grantee you shall be entitled to receive an additional payment (the "“Excise Tax Gross-Up Payment"”) in an amount such that, after payment by Grantee you of all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax Gross-Up Payment, Grantee retains you retain an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation Notwithstanding anything contained herein, if it shall be determined that you are entitled to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee shall be considered but that the Parachute Value (as defined below) of all Payments does not exceed 110% of an amount equal to pay federal income tax at Grantee's actual marginal rate 2.99 times your “base amount,” within the meaning of federal income taxation in Section 280G(b)(3) of the calendar year in which Code (the “Safe Harbor Amount”), then no Excise Tax Gross-Up Payment is shall be made to you and the amounts payable under this letter shall be madereduced so that the Parachute Value of all Payments, and state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality aggregate, equals the Safe Harbor Amount. The reduction of Grantee's residence on the date on which amounts payable hereunder, if applicable, shall be made in such a manner as to maximize the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(n), net of Grantee's actual reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and taking into consideration the phase-out of Grantee's itemized deductions under federal income tax law.economic present value as of

Excise Tax Gross-Up Payment. (i) In the event If it shall be is determined that any payment payment, distribution, coverage or distribution benefit acceleration received or to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of be received by Xxxxxxx from the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to this Agreement or otherwise (a "Payment"), collectively referred to as the “Payments”) would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (together with any interest or penalties imposed with respect the “Code”), (such tax referred to such excise tax, as the "“Excise Tax"”), then Grantee Xxxxxxx shall be entitled to receive an additional payment from the Company (the "“Excise Tax Gross-Up Payment"”) in an amount such thatthat the net amount retained by Xxxxxxx, after payment by Grantee the calculation and deduction of all any Excise Tax on the Payments (together with any penalties and interest that have been or will be imposed on Xxxxxxx in connection therewith) and any federal, state or local income taxes, Excise Taxes and payroll taxes (and any interest or penalties including the tax imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon by Section 3101(b) of the Excise Tax Gross-Up Payment, Grantee retains an amount of Code) on the Excise Tax Gross-Up Payment provided for in this Section 3.5 shall be equal to the Excise Tax imposed upon the Payments. The Company’s obligation In computing the amount of this payment, it shall be assumed that Xxxxxxx is subject to make Excise Tax Gross-Up Payments tax by each taxing jurisdiction at the highest marginal tax rate in the respective taxing jurisdiction of Xxxxxxx, taking into account the city and state in which Xxxxxxx resides, but giving effect to the tax benefit, if any, which Xxxxxxx may enjoy to the extent that any such tax is deductible in determining the tax liability of any other taxing jurisdiction (provided that the highest marginal tax rate for federal income tax purposes shall be determined under Section 1 of the Code). All determinations required to be made under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment3.5, Grantee shall be considered to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in which the including whether and when an Excise Tax Gross-Up Payment is to be made, required and state and local income taxes at Grantee's actual marginal rate the amount of taxation in the state and locality of Grantee's residence on the date on which the such Excise Tax Gross-Up Payment is calculatedand the assumptions to be utilized in arriving at such determination, for purposes of unless otherwise specified in this Section 8(n)3.5, net of Grantee's actual reduction in federal income taxes which could shall be obtained from deduction of such state made by the Company’s independent auditors, whose determination shall be final and local taxes, and taking into consideration the phase-out of Grantee's itemized deductions under federal income tax lawbinding on all parties.

Excise Tax Gross-Up Payment. (i) In If any payments to the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of Executive by --------------------------- the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to under this Agreement (a "PaymentPayments"), would be ) are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise taxCode, the "Excise Tax"), then Grantee Company shall be entitled pay to receive the Executive an additional payment xxxxxx (the xxx "Excise Tax GrossXxxxx-Up Xx Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount Payments. The determination of the Excise Tax Gross-Up Payment equal whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee's actual reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and taking into consideration the phase-out of Grantee's itemized deductions under federal income tax lawimposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (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 Payments.

Excise Tax Gross-Up Payment. (i) In If any payments to the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of Executive by --------------------------- the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to under this Agreement (a "PaymentPayments"), would be ) are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise taxCode, the "Excise Tax"), then Grantee Company shall be entitled pay to receive the Executive an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount Payments. The determination of the Excise Tax Gross-Up Payment equal whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of 112 the Executive's employment, the Executive shall repay the Company, at the time that the amount of such reduction of Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b) (2) (B) of the Code. In the event that the Excise Tax is calculated, for purposes determined to exceed the amount taken into account hereunder at the time of this Section 8(nthe termination of the Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), net of Grantee's actual reduction the Company shall make an additional Gross-Up Payment in federal income taxes which could be obtained from deduction respect of such state 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 local taxes, and taking into consideration the phase-out Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of Grantee's itemized deductions under federal income tax lawliability for Excise Tax with respect to the Payments.

Excise Tax Gross-Up Payment. (i) In If any payments to Executive by the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the --------------------------- Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to under this Agreement or otherwise (a "PaymentPayments"), would be ) are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (together with any interest or penalties imposed with respect to such excise tax, the "Excise TaxCode"), then Grantee the Company shall be entitled pay to receive Executive an additional payment amount (the a "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax such Gross-Up Payment, Grantee retains an amount of shall be equal to the Excise Tax Gross-Up Payment equal Payments. The determination whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up PaymentPay ment, Grantee the Executive shall be considered deemed to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be madefederal, and state and local income taxes at Grantee's actual the highest marginal rate of taxation in rates. In the state and locality of Grantee's residence on the date on which event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, at the time that the amount of such reduction is finally deter mined, the Executive shall repay the Company the portion of the Gross-Up Payment is calculatedattributable to such reduction (plus that portion of the Gross-Up Payment attributable to the tax on the portion of the Gross-Up Payment being repaid, for purposes of this Section 8(n), net of Grantee's actual to the extent the repayment results in a reduction in federal income taxes which could be obtained from deduction tax) plus interest on the amount of such state repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is deter mined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment, the Company shall make an additional Gross-Up Pay ment in respect to such excess, together with interest, penalties or additions payable by the Executive with respect thereto (and local taxes, taxes payable by Executive as a result of such additional Gross-Up Payment) at the time such excess is finally determined. Executive and taking into consideration the phase-out Company shall each reasonably cooperate with each other in connection with any administrative or judicial proceedings concerning the existence or amount of Grantee's itemized deductions under federal income tax lawliability for Excise Tax with respect to the Payments.

Excise Tax Gross-Up Payment. (i) In If any payments made and/or --------------------------- benefits provided to the event it shall be determined that any payment Executive by the Company, whether or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to not under this Agreement (a "PaymentPayments"), would be are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise taxCode, the "Excise Tax"), then Grantee Company shall be entitled pay to receive the Executive an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount Payments. The determination of the Excise Tax Gross-Up Payment equal whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee's actual reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and taking into consideration the phase-out of Grantee's itemized deductions under federal income tax lawimposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (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 Payments.

Excise Tax Gross-Up Payment. (i) In If any payments to the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of Executive --------------------------- by the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to under this Agreement (a "PaymentPayments"), would be ) are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise taxCode, the "Excise Tax"), then Grantee Company shall be entitled pay to receive the Executive an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount Payments. The determination of the Excise Tax Gross-Up Payment equal whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay the Company, at the time that the amount of such reduction of Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b) (2) (B) of the Code. In the event that the Excise Tax is calculated, for purposes determined to exceed the amount taken into account hereunder at the time of this Section 8(nthe termination of the Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), net of Grantee's actual reduction the Company shall make an additional Gross-Up Payment in federal income taxes which could be obtained from deduction respect of such state 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 local taxes, and taking into consideration the phase-out Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of Grantee's itemized deductions under federal income tax lawliability for Excise Tax with respect to the Payments.

Excise Tax Gross-Up Payment. (i) In the event If it shall be is determined that any payment payment, distribution, coverage or distribution benefit acceleration received or to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of be received by Xxxxxx from the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to this Agreement or otherwise (a "Payment"), collectively referred to as the “Payments”) would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (together with any interest or penalties imposed with respect the “Code”), (such tax referred to such excise tax, as the "“Excise Tax"”), then Grantee Xxxxxx shall be entitled to receive an additional payment from the Company (the "“Excise Tax Gross-Up Payment"”) in an amount such thatthat the net amount retained by Xxxxxx, after payment by Grantee the calculation and deduction of all any Excise Tax on the Payments (together with any penalties and interest that have been or will be imposed on Xxxxxx in connection therewith) and any federal, state or local income taxes, Excise Taxes and payroll taxes (and any interest or penalties including the tax imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon by Section 3101(b) of the Excise Tax Gross-Up Payment, Grantee retains an amount of Code) on the Excise Tax Gross-Up Payment provided for in this Section 3.5 shall be equal to the Excise Tax imposed upon the Payments. The Company’s obligation In computing the amount of this payment, it shall be assumed that Xxxxxx is subject to make Excise Tax Gross-Up Payments tax by each taxing jurisdiction at the highest marginal tax rate in the respective taxing jurisdiction of Xxxxxx, taking into account the city and state in which Xxxxxx resides, but giving effect to the tax benefit, if any, which Xxxxxx may enjoy to the extent that any such tax is deductible in determining the tax liability of any other taxing jurisdiction (provided that the highest marginal tax rate for federal income tax purposes shall be determined under Section 1 of the Code). All determinations required to be made under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment3.5, Grantee shall be considered to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in which the including whether and when an Excise Tax Gross-Up Payment is to be made, required and state and local income taxes at Grantee's actual marginal rate the amount of taxation in the state and locality of Grantee's residence on the date on which the such Excise Tax Gross-Up Payment is calculatedand the assumptions to be utilized in arriving at such determination, for purposes of unless otherwise specified in this Section 8(n)3.5, net of Grantee's actual reduction in federal income taxes which could shall be obtained from deduction of such state made by the Company’s independent auditors, whose determination shall be final and local taxes, and taking into consideration the phase-out of Grantee's itemized deductions under federal income tax lawbinding on all parties.

Excise Tax Gross-Up Payment. (i) In If any payments made and/or benefits --------------------------- provided to the event it shall be determined that any payment Executive by the Company, whether or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to not under this Agreement (a "PaymentPayments"), would be are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise taxCode, the "Excise Tax"), then Grantee Company shall be entitled pay to receive the Executive an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount Payments. The determination of the Excise Tax Gross-Up Payment equal whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee's actual reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and taking into consideration the phase-out of Grantee's itemized deductions under federal income tax lawimposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (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 Payments.

Excise Tax Gross-Up Payment. (i) In If any payments to Executive by the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the --------------------------- Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to under this Agreement or otherwise (a "PaymentPayments"), would be ) are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (together with any interest or penalties imposed with respect to such excise tax, the "Excise TaxCode"), then Grantee the Company shall be entitled pay to receive Executive an additional payment amount (the a "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax such Gross-Up Payment, Grantee retains an amount of shall be equal to the Excise Tax Gross-Up Payment equal Payments. The determination whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be madefederal, and state and local income taxes at Grantee's actual the highest marginal rate of taxation in rates. In the state and locality of Grantee's residence on the date on which event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, at the time that the amount of such reduction is finally determined, the Executive shall repay the Company the portion of the Gross-Up Payment is calculatedattributable to such reduction (plus that portion of the Gross-Up Payment attributable to the tax on the portion of the Gross-Up Payment being repaid, for purposes of this Section 8(n), net of Grantee's actual to the extent the repayment results in a reduction in federal income taxes which could be obtained from deduction tax) plus interest on the amount of such state repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment, the Company shall make an additional Gross-Up Payment in respect to such excess, together with interest, penalties or additions payable by the Executive with respect thereto (and local taxes, taxes payable by Executive as a result of such additional Gross-Up Payment) at the time such excess is finally determined. Executive and taking into consideration the phase-out Company shall each reasonably cooperate with each other in connection with any administrative or judicial proceedings concerning the existence or amount of Grantee's itemized deductions under federal income tax lawliability for Excise Tax with respect to the Payments.

Excise Tax Gross-Up Payment. (i) In If the event it shall be determined that total of all payments made to the --------------------------- Employee pursuant to this Agreement, together with any payment or distribution other payments which the Employee has a right to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of receive from the Company (within or any affiliates or subsidiaries of the meaning Company) result in the imposition of an excise tax under Section 280G(b)(24999 (or any successor thereto) of the Code)Internal Revenue Code of 1986, paid or payable pursuant to this Agreement (a "Payment")as amended, would be subject (in whole or in part) to the Company shall pay the Employee an additional excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the "Excise Tax"), then Grantee shall be entitled to receive an additional adjustment payment (the "Excise Tax Gross-Up Payment") in an amount such that, after the payment by Grantee of all taxes federal and state income and excise taxes, the Employee will be in the same after-tax position as if no excise tax had been imposed. Any payment or benefit which is required to be included under Section 280G or 4999 (and or any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax Gross-Up Payment, Grantee retains an amount successor provisions thereto) of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For Internal Revenue Code for purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee whether an excise tax is payable shall be considered deemed a payment "made to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in Employee" or a payment "which the Excise Tax Gross-Up Payment is Employee has a right to be made, and state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence on the date on which the Excise Tax Gross-Up Payment is calculated, receive" for purposes of this Section 8(n)provision. The Company shall be responsible for the cost of calculation of the excise tax by its independent certified accountant and tax counsel and shall notify the Employee of the amount of excise tax due prior to the time such excise tax is due. If at any time it is determined that the additional excise tax adjustment payment previously made to the Employee was insufficient to cover the effect of the excise tax, net the excise tax gross-up payment pursuant to this provision shall be increased to make the Employee whole, including an amount to cover the payment of Grantee's actual reduction in federal income taxes which could be obtained any penalties resulting from deduction incorrect or late payment of such state and local taxes, and taking into consideration the phase-out of Grantee's itemized deductions under federal income excise tax lawresulting from the prior calculation.

Excise Tax Gross-Up Payment. (ia) In Except as set forth below, in the event it shall be determined that any payment or distribution to Grantee you or for Grantee's your benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company REIT or the ownership of a substantial portion of the assets of the Company REIT (within the meaning of Section 280G(b)(2) of the Code), whether paid or payable pursuant to this Agreement letter or otherwise (a "“Payment"”), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the "“Excise Tax"”), then Grantee you shall be entitled to receive an additional payment (the "“Excise Tax Gross-Up Payment"”) in an amount such that, after payment by Grantee you of all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax Gross-Up Payment, Grantee retains you retain an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation Notwithstanding anything contained herein, if it shall be determined that you are entitled to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee shall be considered but that the Parachute Value (as defined below) of all Payments does not exceed 110% of an amount equal to pay federal income tax at Grantee's actual marginal rate 2.99 times your “base amount,” within the meaning of federal income taxation in Section 280G(b)(3) of the calendar year in which Code (the “Safe Harbor Amount”), then no Excise Tax Gross-Up Payment is shall be made to you and the amounts payable under this letter shall be madereduced so that the Parachute Value of all Payments, and state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality aggregate, equals the Safe Harbor Amount. The reduction of Grantee's residence on the amounts payable hereunder, if applicable, shall be made in such a manner as to maximize the economic present value as of the date on which of the Excise Tax Gross-Up change in control transaction of all Payments actually made to you. For purposes of this letter, the “Parachute Value” of a Payment is calculated, shall mean the present value as of the date of the change in control transaction for purposes of this Section 8(n), net 280G of Grantee's actual reduction in federal income taxes which could be obtained from deduction the Code of the portion of such state and local taxes, and taking into consideration Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the phase-out of Grantee's itemized deductions under federal income tax lawCode.