Common use of Excise Tax Clause in Contracts

Excise Tax. (a) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or policy of Employer in connection with, on account of, or as a result of, such Change in Control ("Total Payments") will be subject to the excise tax provisions of Section 4999 of the Code, or any successor section thereof, Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment (the "Gross-Up Payment"), sufficient to cover the full cost of such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by Executive, after the payment of all such excise taxes on the Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine the amount of the Gross-Up Payment to be made to Executive pursuant to the preceding subsection. Prior to the making of any such Gross-Up Payment, either party may request a determination as to the amount of such Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employer's expense, by independent tax counsel selected by Executive and approved by Employer (which approval shall not unreasonably be withheld), and such determination shall be conclusive and binding on the parties. Employer shall provide such information as such counsel may reasonably request, and such counsel may engage accountants or other experts at Employer's expense to the extent that they deem necessary or advisable to enable them to reach a determination. The term "independent tax counsel," as used herein, shall mean a law firm of recognized expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.

Excise Tax. (ai) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's employment (1) hereunder, and (2) whether pursuant to the terms of this Agreement or any other plan, program arrangement or policy of Employer agreement with the Company, any person whose actions result in connection with, on account of, a change in control or as a result of, any person affiliated with the Company or such Change in Control person) (all such payments and benefits being hereinafter called "Total Payments") ), such that the Executive will be subject (in whole or in part) to the excise tax provisions of imposed under Code Section 4999 of ("Excise Tax") on such payments and benefits, then the Code, or any successor section thereof, Company shall pay to the Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment an additional amount (the "Gross-Up Payment")) such that the net amount retained by the Executive, sufficient to cover after deduction of the full cost of such excise taxes Excise Tax and Executive's any federal, state and local income and employment taxes on this additional payment so that the net amount retained by Executive, after the payment of all such excise taxes on the Total Payments, and all federal, state and local income and employment taxes and excise taxes tax on the Gross-Up Payment, shall will be equal to the Total Payments. The Total Payments, however, shall total amount of payments required to be subject paid pursuant to any federal, state and local income and employment taxes thereonthis Agreement. For this purpose, Executive shall be deemed to be in the highest marginal rate purposes of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made to and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive pursuant or the Company may request, prior to the preceding subsection. Prior time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the making of any such Gross-Up PaymentExcise Tax and, either party may request a determination as to if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employerthe Company's expense, by independent tax counsel selected by the Executive and approved by Employer the Company (which with such approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on the both parties. Employer shall The Company agrees to provide any information reasonably requested by such information as such counsel may reasonably request, and such tax counsel. Tax counsel may engage accountants or other experts experts, at Employerthe Company's expense expense, to the extent that they deem deemed necessary or advisable to enable for them to reach a determination. The For these purposes, the term "independent tax counsel," as used herein, shall mean a law firm of recognized with expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determinationmatters. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.

Excise Tax. (ai) In the event that any payment or benefit received or to be received by the Executive in connection with a Change in of Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection the termination of the Executive’s employment (b) next below, that the aggregate amount of any payment made to Executive (1) hereunder, and (2) whether pursuant to the terms of this Agreement or any other plan, program arrangement or policy agreement with the Company, any person whose actions result in a Change of Employer in connection with, on account of, Control or as a result of, any person affiliated with the Company or such Change in Control person) ("all such payments and benefits being hereinafter called “Total Payments"”) will be subject (in whole or part) to the excise tax provisions of (the “Excise Tax”) imposed under Section 4999 of the CodeInternal Revenue Code of 1986, or any successor section thereof, Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment as amended (the "“Code”), then, subject to the provisions of Section 8(c)(ii) hereof, the Company will pay to the Executive an additional amount (the “Gross-Up Payment")”) such that the net amount retained by the Executive, sufficient to cover after deduction of any Excise Tax on the full cost of such excise taxes Total Payments and Executive's any federal, state and local income tax and employment taxes on this additional payment so that the net amount retained by Executive, after Excise Tax upon the payment of all such excise taxes on the Total Paymentsprovided for by this Section 8(c)(i), and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall will be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate purposes of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine determining the amount of the Gross-Up Payment, the Executive will be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on such date, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) In the event that, after giving effect to any redeterminations described in Section 8(c)(iv) hereof, a reduction in the Total Payments to the largest amount that would result in no portion of the Total Payments being subject to the Excise Tax (after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement) would produce a net amount (after deduction of the net amount of federal, state and local income tax on such reduced Total Payments) that would be greater than the net amount of unreduced Total Payments (after deduction of the net amount of federal, state and local income tax and the amount of Excise Tax to which the Executive would be subject in respect of such Total Payments), then Section 8(c)(i) hereof will not apply and the Total Payments will be so reduced. (iii) The determination of whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax will be made by the Company’s independent auditors. The Company will provide the Executive with its calculation of the amounts referred to in this Section 8(c) and such supporting materials as are reasonably necessary for the Executive to evaluate the Company’s calculations. If the Executive disputes the Company’s calculations (in whole or in part), the reasonable opinion of the Company’s independent auditors with respect to the matter in dispute will prevail. (iv) In the event that (A) the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of payment of the Total Payments and (B) after giving effect to such redetermination, the Total Payments are reduced pursuant to Section 8(c)(ii) hereof, the preceding subsection. Prior Executive will repay to the making Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in the 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 (X) 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) and (Y) after giving effect to such redetermination, the Total Payments are not reduced pursuant to Section 8(c)(ii) hereof, the Company will make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made a Gross-Up Payment (plus any additional taxes payable by the Executive with respect to such excess and such portion) at the time that the amount of such excess is finally determined. The Company shall also reimburse the Executive for any expenses (including interest and penalties) incurred in any such additional Gross-Up redetermination to the extent permitted under Section 409A. (All reimbursements of expenses incurred in connection with such additional Gross-Up redetermination shall be made within thirty (30) days after the Executive incurs such expense, the amounts reimbursed in a tax year will not affect such expenses eligible for reimbursement in any other tax year, and such reimbursement period shall be effective so long as the applicable statute of limitations for such Gross-Up Paymentredetermination is open. Such reimbursements are intended to comply with Treasury Regulation Section 1.409A-3(i)(1)(iv)(A)). (v) The Executive shall notify the Company in writing of any claim that, either party may request if successful, would require the payment by the Company of a determination as Gross-Up Payment or might entitle the Company to the amount refund of such all or part of any previous Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is required to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives such notice to the Company. If the Company notifies the Executive in writing prior to the expiration of such a determination is requestedperiod that it desires to contest such claim, it the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney jointly selected by the Executive and the Company; (iii) cooperate with the Company in good faith in order to effectively contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim. The Company shall reimburse the Executive for all costs and expenses (including legal fees and additional interest and penalties to the extent permitted under 409A) incurred in connection with such contest. All reimbursements of such expenses shall be made promptly, at Employer's within 30 days after the Executive incurs such expense, by independent the amounts reimbursed in a tax counsel selected by Executive and approved by Employer (which approval shall year will not unreasonably be withheld)affect such expenses eligible for reimbursement in any other tax year, and such determination reimbursement period shall be conclusive and binding effective so long as the applicable statute of limitations for such claim is open. Such reimbursements are intended to comply with Treasury Regulation Section 1.409A-3(i)(1)(iv)(A). (vi) Without limitation on the partiesforegoing, the Company shall control all audits and proceedings taken in connection with any claim, audit or proceeding involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim, audit or proceeding and may, at its sole option, either direct the Executive to pay the tax claimed and ▇▇▇ for a refund or contest the tax in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; PROVIDED, HOWEVER, that if the Company directs the Executive to pay such tax and ▇▇▇ for a refund, the Company shall reimburse the Executive within thirty (30) days after the Executive pays such taxes (including interest or penalties with respect thereto to the extent permitted under 409A). Employer All reimbursements of such expenses shall provide be made within thirty (30) days after the Executive incurs such information as expense, the amounts reimbursed in a tax year will not affect such counsel may reasonably requestexpenses eligible for reimbursement in any other tax year, and such counsel may engage accountants or other experts at Employer's expense reimbursement period shall be effective so long as the applicable statute of limitations for such claim is open. Such reimbursements are intended to the extent that they deem necessary or advisable to enable them to reach a determinationcomply with Treasury Regulation Section 1.409A-3(i)(1)(iv)(A). The term "independent tax counsel," as used herein, Company’s control of the contest shall mean be limited to issues with respect to which such a law firm of recognized expertise in federal income tax matters that has not previously advised Gross-Up Payment would be payable or represented either party. It is hereby agreed that neither Employer nor refundable hereunder and the Executive shall engage any such firm as counsel for any purpose, other than be entitled to make the determination provided for herein, for three years following such firm's announcement of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, settle or Executive shall pay to Employercontest, as the case may be, any other issue. (vii) To the full amount necessary extent that a Gross-Up Payment is determined to make either be payable pursuant to this Section 8(c), such payment must be made no later than the end of the taxable year immediate following the taxable year in which the taxes described above are remitted by the Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Servicetaxing authority.

Excise Tax. (a) In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made or distribution to Executive or for the benefit of the Employee (1) hereunder, and (2) whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any plan, program or policy of Employer in connection with, on account of, or as additional payments required under this Section 16) (a result of, such Change in Control ("Total PaymentsTermination Payment") will would be subject to the excise tax provisions of imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor section thereofinterest or penalties are incurred by the Employee with respect to such excise tax (such excise tax, Executive together with any such interest and penalties, hereinafter collectively referred to as the "Excise Tax"), then the Employee shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum an additional payment (the a "Gross-Up Payment") in an amount such that after payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), sufficient to cover the full cost of such excise including, without limitation, any income taxes (and Executive's federal, state any interest and local income penalties imposed with respect thereto) and employment taxes on this additional payment so that the net amount retained by Executive, after the payment of all such excise taxes on the Total Payments, and all federal, state and local income and employment taxes and excise taxes on Excise Tax imposed upon the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in Employee retains an amount of the highest marginal rate of federal, state and local taxes. The Gross-Up Payment shall be made at equal to the same time as Excise Tax imposed upon the payments described in subsections 3(a)(1) and (2) abovePayments. (b) Employer and Executive shall mutually and reasonably determine For purposes of determining the amount of the Gross-Up Payment, Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Employee's residence on the Termination Date, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If the Excise Tax is subsequently determined to Executive pursuant be less than the amount taken into account hereunder at the time of Employee's termination of employment, Employee shall repay to the preceding subsection. Prior 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 making Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by Employee to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. If the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of Employee's employment (including by reason of any such payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), either party may request the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Employee with respect to such excess) at the time that the amount of such excess is finally determined. Employee and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Termination Payments. (c) All determinations required to be made under this Section 16, including (without limitation) whether and when a determination as to Gross-Up Payment is required and the amount of such Gross-Up Payment. If Payment and the assumptions to be used in arriving at such a determination is requesteddetermination, it shall be made promptly, at Employer's expense, by independent tax counsel a certified public accounting firm selected by Executive the Company and approved by Employer reasonably acceptable to Employee (which approval shall not unreasonably be withheldthe "Accounting Firm"), and such determination which shall be conclusive and binding on the parties. Employer shall retained to provide such information as such counsel may reasonably request, and such counsel may engage accountants or other experts at Employer's expense detailed supporting calculations both to the extent Company and Employee within 15 business days of the receipt of notice from Employee that they deem necessary there has been a Termination Payment, or advisable such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be paid solely by the Company. Any Gross-Up Payment, as determined pursuant to enable them this Section 16, shall be paid by the Company to reach a Employee within five (5) days of the receipt of the Accounting Firm's determination. The term Any determination by the Accounting Firm shall be binding upon the Company and Employee. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("independent tax counsel," as used hereinUnderpayment"), shall mean a law firm of recognized expertise in federal income tax matters that has not previously advised or represented either partyconsistent with the calculations required to be made hereunder. It If Employee thereafter is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than required to make the determination provided for herein, for three years following such firm's announcement a payment of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may beany Excise Tax, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including Accounting Firm shall determine the amount of any underpaid or overpaid excise tax, the Underpayment that has occurred and any related interest and/or penalties due such Underpayment shall be promptly paid by the Company to or for the Internal Revenue Servicebenefit of Employee.

Excise Tax. (ai) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made or benefit received or to be received by the Executive in connection with a termination of the Executive's employment (1) hereunder, and (2) whether pursuant to the terms of this Agreement or any other plan, program arrangement or policy of Employer agreement with the Company, any person whose actions result in connection with, on account of, a change in control or as a result of, any person affiliated with the Company or such Change in Control person) (all such payments and benefits being hereinafter called "Total Payments") ), such that the Executive will be subject (in whole or in part) to the excise tax provisions of imposed under Code Section 4999 of ("Excise Tax") on such payments and benefits, then the Code, or any successor section thereof, Company shall pay to the Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment an additional amount (the "Gross-Up Payment"), sufficient to cover the full cost of ) such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by the Executive, after deduction of the payment of all such excise taxes on the Total Payments, Excise Tax and all any federal, state and local income and employment taxes and excise taxes tax on the Gross-Up Payment, shall will be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate purposes of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made to and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive pursuant or the Company may request, prior to the preceding subsection. Prior time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the making of any such Gross-Up PaymentExcise Tax and, either party may request a determination as to if so, the amount of such Excise Tax and the federal, state and local tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employerthe Company's expense, by independent tax counsel selected by the Executive and approved by Employer the Company (which with such approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on the both parties. Employer shall The Company agrees to provide any information reasonably requested by such information as such counsel may reasonably request, and such tax counsel. Tax counsel may engage accountants or other experts experts, at Employerthe Company's expense expense, to the extent that they deem deemed necessary or advisable to enable for them to reach a determination. The For these purposes, the term "independent tax counsel," as used herein, shall mean a law firm of recognized with expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determinationmatters. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.

Excise Tax. (ai) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's employment (1) hereunder, and (2) whether pursuant to the terms of this Agreement or any other plan, program arrangement or policy of Employer agreement with the Company, any person whose actions result in connection with, on account of, a change in control or as a result of, any person affiliated with the Company or such Change in Control person) (all such payments and benefits being hereinafter called "Total Payments") ), such that the Executive will be subject (in whole or in part) to the excise tax provisions of imposed under Code Section 4999 of ("Excise Tax") on such payments and benefits, then the Code, or any successor section thereof, Company shall pay to the Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment an additional amount (the "Gross-Up Payment"), sufficient to cover the full cost of ) such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by the Executive, after deduction of the payment of all such excise taxes on the Total Payments, Excise Tax and all any federal, state and local income and employment taxes and excise taxes tax on the Gross-Up Payment, shall will be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereonPayment. For this purpose, Executive shall be deemed to be in the highest marginal rate purposes of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made to and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive pursuant or the Company may request, prior to the preceding subsection. Prior time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the making of any such Gross-Up PaymentExcise Tax and, either party may request a determination as to if so, the amount of such Excise Tax and the federal, state and local tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employerthe Company's expense, by independent tax counsel selected by the Executive and approved by Employer the Company (which with such approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on the both parties. Employer shall The Company agrees to provide any information reasonably requested by such information as such counsel may reasonably request, and such tax counsel. Tax counsel may engage accountants or other experts experts, at Employerthe Company's expense expense, to the extent that they deem deemed necessary or advisable to enable for them to reach a determination. The For these purposes, the term "independent tax counsel," as used herein, shall mean a law firm of recognized with expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determinationmatters. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.

Excise Tax. (ai) In the event that any payment or benefit received or to be received by the Executive in connection with a Change change in Control shall occurcontrol or a termination of the Executive’s employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a change in control or any person affiliated with the Company or such person) (all such payments and a final determination is made by legislationbenefits being hereinafter called “Total Payments”), regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, such that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or policy of Employer in connection with, on account of, or as a result of, such Change in Control ("Total Payments") will be subject (in whole or in part) to the excise tax provisions of imposed under Section 4999 of the CodeInternal Revenue Code of 1986, or any successor section thereofas amended (“Excise Tax”), on such payments and benefits, then the Company shall pay to the Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment an additional amount (the "“Gross-Up Payment"), sufficient to cover the full cost of ”) such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by the Executive, after deduction of the payment of all such excise taxes on the Total Payments, Excise Tax and all any federal, state and local income and employment taxes and excise taxes tax on the Gross-Up Payment, shall will be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereonPayment. For this purpose, Executive shall be deemed to be in the highest marginal rate purposes of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made to and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive pursuant or the Company may request, prior to the preceding subsection. Prior time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the making of any such Gross-Up PaymentExcise Tax and, either party may request a determination as to if so, the amount of such Excise Tax and the federal, state and local tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employer's the Company’s expense, by independent tax counsel selected by the Executive and approved by Employer the Company (which with such approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on the both parties. Employer shall The Company agrees to provide any information reasonably requested by such information as such counsel may reasonably request, and such tax counsel. Tax counsel may engage accountants or other experts experts, at Employer's expense the Company’s expense, to the extent that they deem deemed necessary or advisable to enable for them to reach a determination. The For these purposes, the term "independent “tax counsel," as used herein, ” shall mean a law firm of recognized with expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determinationmatters. (ciii) In the event that the Internal Revenue Service Excise Tax is subsequently adjusts determined to be less than the excise amount taken into account hereunder, the Executive will repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax computation imposed on the Gross-Up Payment, without any interest thereon. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Company will make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made pursuant a Gross-Up Payment (plus any interest, penalties or additions payable by the Executive with respect to subsections 4(asuch excess and such portion) at the time that the amount of such excess is finally determined, without any interest thereon. (iv) Each party agrees to notify the other party, in writing, of any claim that, if successful, would require the payment by the Company of a Gross-Up Payment or might entitle the Company to a refund of all or part of any previous Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive or Company is informed in writing of such claim or otherwise becomes aware of such claim. If notice of the claim arose as a result of a claim made against the Executive by a taxing authority, Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives notice to the Company. If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to reasonably participate in any proceedings relating to such claim. The Company shall bear and pay directly all costs and expenses (including legal fees and additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (v) Notwithstanding the foregoing, the Company shall control all audits and proceedings taken in connection with any claim, audit or proceeding involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim, audit or proceeding and may, at its sole option, either direct the Executive to pay the tax claimed and ▇▇▇ for a refund or contest the tax in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such tax and ▇▇▇ for a refund, the Company shall advance the amount of such payment to the Executive, (including interest or penalties with respect thereto) and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (bincluding interest or penalties with respect thereto) aboveimposed with respect to such advance or with respect to any imputed income with respect to such advance. The Company shall be required to consult with and keep the Executive fully apprised of developments and actions being considered or taken with respect to such claim, Employer audit or proceeding. The Company’s control of the contest shall pay be limited to Executive, issues with respect to which such a Gross-Up Payment would be payable or refundable hereunder and the Executive shall pay be entitled to Employersettle or contest, as the case may be, any other issue. Each party agrees to keep the full amount necessary other party fully apprised of developments concerning such claim, audit or proceeding and to make either Executive cooperate with the other in good faith in order to effectively resolve such claim, audit or Employer whole had the excise tax initially been computed as subsequently adjustedproceeding. (vi) For purposes of this Subsection (c), a determination of whether a payment is subject to Excise Taxes, including the amount but not limited to, a determination of any underpaid or overpaid excise taxchange in control, and any related interest and/or penalties due shall be made pursuant to Section 280G of the Internal Revenue ServiceCode of 1986, as amended.

Excise Tax. (a) 10.1 In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employerthe Company, by court decision, or by independent tax counsel described in subsection (b) next section 10.2 below, that the aggregate amount of any payment made to Executive (1a) hereunder, and (2b) pursuant to any plan, program or policy of Employer the Company in connection with, on account of, or as a result of, such a Change in Control ("Total Payments") will be subject to the excise tax provisions of Section 4999 of the Code, or any successor section thereof, Executive shall be entitled to receive from Employerthe Company, in addition to any other amounts payable hereunder, a lump sum payment (the "Gross-Up Payment"), sufficient to cover the full cost of such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment payment, so that the net amount retained by Executive, after the payment of all such excise taxes on the Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) section 9.1 above. (b) 10.2 Employer and Executive shall mutually and reasonably determine the amount of the Gross-Up Payment to be made to Executive pursuant to the preceding subsectionsection 10.1. Prior to the making of any such Gross-Up Payment, either party may request a determination as to the amount of such Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employerthe Company's expense, by independent tax counsel selected by Executive and approved by Employer the Company (which approval shall not unreasonably be withheld), and such determination shall be conclusive and binding on the parties. Employer The Company shall provide such information as such counsel may reasonably request, and such counsel may engage accountants or other experts at Employerthe Company's expense to the extent that they deem necessary or advisable to enable them to reach a determination. The term "independent tax counsel," as used herein, shall mean a law firm of recognized expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer the Company nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determination. (c) 10.3 In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) sections 10.1 and (b) 10.2 above, Employer the Company shall pay to Executive, or Executive shall pay to Employerthe Company, as the case may be, the full amount necessary to make either Executive or Employer the Company whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.

Excise Tax. (a) 5.1 In the event any payment that a Change in Control shall occuris either received by the Executive or paid by the Company on his behalf, and a final determination is made by legislation, regulation, ruling directed or any other benefit provided to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that pursuant to the aggregate amount terms of any arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or policy of Employer other benefit is in connection withwith the Executive’s employment by the Company) (collectively the “Payment”), on account of, or as a result of, such Change in Control ("Total Payments") will be is subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the “Excise Tax”), Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 5 if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payment does not exceed the lesser of A) 110% of the greatest amount that could be paid to Participant without giving rise to any Excise Tax (the “Safe Harbor Amount”) or B) $50,000, then no Gross-Up Payment shall be made to Executive and the amounts payable under this Plan shall be reduced so that the Payment, in the aggregate, is reduced to the Safe Harbor Amount. 5.2 All determinations required to be made under this Section 5 including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within ten (10) business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company; provided that for purposes of determining the amount of any Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest effective rates applicable to individuals in the state or locality in which the Executive incurs income taxes in the calendar year in which any such Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account limitations applicable to individuals subject to federal income tax at the highest marginal rates. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 5, shall be paid by the Company to the Executive (or to the appropriate taxing authority on the Executive’s behalf) within thirty (30) days following the date upon which the Executive provides written documentation that the related excise taxes have been remitted to the appropriate taxing authority (with the determination of the date of such payment made by the Company at its sole discretion); provided, that the Gross-Up Payment shall be paid no later than the end of the Executive’s taxable year next following the Executive’s taxable year in which the related excise taxes are remitted to the appropriate taxing authority (the “Required Gross-Up Payment Date”). If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall so indicate to the Executive in writing. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code, or any successor section thereof, Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment (the "Gross-Up Payment"), sufficient to cover the full cost of such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so it is possible that the net amount retained by Executive, after the payment of all such excise taxes on the Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine the amount of the Gross-Up Payment determined by the Accounting Firm to be made due to (or on behalf of) the Executive was lower than the amount actually due (“Underpayment”). In the event that the Company exhausts its remedies pursuant to Section 5.3 and the preceding subsection. Prior Executive thereafter is required to the making make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive as soon as administratively practicable following the date upon which the amount of the Underpayment is determined by the Accounting Firm (with the determination of the date of such payment made by the Company at its sole discretion), but in any event, no later than the Required Gross-Up PaymentPayment Date. 5.3 The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, either party may request a determination as to if successful, would require the amount payment by the Company of such any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order to effectively contest such claim and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest. Without limitation on the foregoing provisions of this Section 5.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, further, that if the Executive is requestedrequired to extend the statute of limitations to enable the Company to contest such claim, it the Executive may limit this extension solely to such contested amount. The Company’s control of the contest shall be made promptly, at Employer's expense, by independent tax counsel selected by Executive limited to issues with respect to which a Gross-Up Payment would be payable hereunder and approved by Employer (which approval shall not unreasonably be withheld), and such determination the Participant shall be conclusive and binding on the parties. Employer shall provide such information as such counsel may reasonably request, and such counsel may engage accountants entitled to settle or other experts at Employer's expense to the extent that they deem necessary or advisable to enable them to reach a determination. The term "independent tax counsel," as used herein, shall mean a law firm of recognized expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employercontest, as the case may be, any other issue raised by the full Internal Revenue Service or any other taxing authority. 5.4 If, after the receipt by the Executive of an amount necessary paid or advanced by the Company pursuant to make either this Section 5, the Executive or Employer whole had becomes entitled to receive any refund with respect to a Gross-Up Payment, the excise tax initially been computed as subsequently adjusted, including Executive shall promptly pay to the Company the amount of such refund received (together with any underpaid interest paid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Servicecredited thereon after taxes applicable thereto).

Excise Tax. (ai) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's employment (1) hereunder, and (2) whether pursuant to the terms of this Agreement or any other plan, program arrangement or policy of Employer agreement with the Company, any person whose actions result in connection with, on account of, a change in control or as a result of, any person affiliated with the Company or such Change in Control person) (all such payments and benefits being hereinafter called "Total Payments") ), is in an amount such that the Executive will be subject (in whole or in part) to the excise tax provisions of imposed under Section 4999 of the CodeInternal Revenue Code of 1986, or any successor section thereofas amended ("Excise Tax") on such payments and benefits, then the Company shall pay to the Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment an additional amount (the "Gross-Up Payment"), sufficient to cover the full cost of ) such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by the Executive, after deduction of the payment of all such excise taxes on the Total Payments, Excise Tax and all any federal, state and local income and employment taxes and excise taxes tax on the Gross-Up Payment, shall will be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate purposes of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made to and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive pursuant or the Company may request, prior to the preceding subsection. Prior time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the making of any such Gross-Up PaymentExcise Tax and, either party may request a determination as to if so, the amount of such Excise Tax and the federal, state and local tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employerthe Company's expense, by independent tax counsel selected by the Executive and approved by Employer the Company (which with such approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on the both parties. Employer shall The Company agrees to provide any information reasonably requested by such information as such counsel may reasonably request, and such tax counsel. Tax counsel may engage accountants or other experts experts, at Employerthe Company's expense expense, to the extent that they deem deemed necessary or advisable to enable for them to reach a determination. The For these purposes, the term "independent tax counsel," as used herein, shall mean a law firm of recognized with expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determinationmatters. (ciii) In the event that the Internal Revenue Service Excise Tax is subsequently adjusts determined to be less than the excise amount taken into account hereunder, the Executive will repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax computation imposed on the Gross-Up Payment, without any interest thereon. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Company will make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made pursuant a Gross-Up Payment (plus any interest, penalties or additions to subsections 4(atax payable by the Executive with respect to such excess and such portion) at the time that the amount of such excess or such portion is finally determined, without any interest thereon. (iv) Each party agrees to notify the other party, in writing, of any claim that, if successful, would require the payment by the Company of a Gross-Up Payment or might entitle the Company to a refund of all or part of any previous Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive or Company is informed in writing of such claim or otherwise becomes aware of such claim. If notice of the claim arose as a result of a claim made against the Executive by a taxing authority, Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives notice to the Company. If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to reasonably participate in any proceedings relating to such claim. The Company shall bear and pay directly all costs and expenses (including legal fees and additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (v) Notwithstanding the foregoing, the Company shall control all audits and proceedings taken in connection with any claim, audit or proceeding involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim, audit or proceeding and may, at its sole option, either direct the Executive to pay the tax claimed and ▇▇▇ for a refund or contest the tax in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such tax and ▇▇▇ for a refund, the Company shall advance the amount of such payment to the Executive, (including interest or penalties with respect thereto) and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (bincluding interest or penalties with respect thereto) aboveimposed with respect to such advance or with respect to any imputed income with respect to such advance. The Company shall be required to consult with and keep the Executive fully apprised of developments and actions being considered or taken with respect to such claim, Employer audit or proceeding. The Company's control of the contest shall pay be limited to Executive, issues with respect to which such a Gross-Up Payment would be payable or refundable hereunder and the Executive shall pay be entitled to Employersettle or contest, as the case may be, any other issue. Each party agrees to keep the full amount necessary other party fully apprised of developments concerning such claim, audit or proceeding and to make either Executive cooperate with the other in good faith in order to effectively resolve such claim, audit or Employer whole had the excise tax initially been computed as subsequently adjustedproceeding. (vi) For purposes of this Subsection (c), a determination of whether a payment is subject to Excise Tax, including the amount but not limited to, a determination of any underpaid or overpaid excise taxchange in control, and any related interest and/or penalties due shall be made pursuant to Section 280G of the Internal Revenue ServiceCode of 1986, as amended.

Excise Tax. (ai) In the event that any payment or benefit received or to be received by the Executive in connection with a Change change in Control shall occurcontrol or a termination of the Executive’s employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a change in control or any person affiliated with the Company or such person) (all such payments and a final determination benefits being hereinafter called “Total Payments”), is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, an amount such that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or policy of Employer in connection with, on account of, or as a result of, such Change in Control ("Total Payments") will be subject (in whole or in part) to the excise tax provisions of imposed under Section 4999 of the CodeInternal Revenue Code of 1986, or any successor section thereofas amended (“Excise Tax”) on such payments and benefits, then the Company shall pay to the Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment an additional amount (the "“Gross-Up Payment"), sufficient to cover the full cost of ”) such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by the Executive, after deduction of the payment of all such excise taxes on the Total Payments, Excise Tax and all any federal, state and local income and employment taxes and excise taxes tax on the Gross-Up Payment, shall will be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate purposes of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made to and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive pursuant or the Company may request, prior to the preceding subsection. Prior time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the making of any such Gross-Up PaymentExcise Tax and, either party may request a determination as to if so, the amount of such Excise Tax and the federal, state and local tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employer's the Company’s expense, by independent tax counsel selected by the Executive and approved by Employer the Company (which with such approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on the both parties. Employer shall The Company agrees to provide any information reasonably requested by such information as such counsel may reasonably request, and such tax counsel. Tax counsel may engage accountants or other experts experts, at Employer's expense the Company’s expense, to the extent that they deem deemed necessary or advisable to enable for them to reach a determination. The For these purposes, the term "independent “tax counsel," as used herein, ” shall mean a law firm of recognized with expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determinationmatters. (ciii) In the event that the Internal Revenue Service Excise Tax is subsequently adjusts determined to be less than the excise amount taken into account hereunder, the Executive will repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax computation imposed on the Gross-Up Payment, without any interest thereon. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Company will make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made pursuant a Gross-Up Payment (plus any interest, penalties or additions to subsections 4(atax payable by the Executive with respect to such excess and such portion) at the time that the amount of such excess or such portion is finally determined, without any interest thereon. (iv) Each party agrees to notify the other party, in writing, of any claim that, if successful, would require the payment by the Company of a Gross-Up Payment or might entitle the Company to a refund of all or part of any previous Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive or Company is informed in writing of such claim or otherwise becomes aware of such claim. If notice of the claim arose as a result of a claim made against the Executive by a taxing authority, Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives notice to the Company. If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to reasonably participate in any proceedings relating to such claim. The Company shall bear and pay directly all costs and expenses (including legal fees and additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (v) Notwithstanding the foregoing, the Company shall control all audits and proceedings taken in connection with any claim, audit or proceeding involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim, audit or proceeding and may, at its sole option, either direct the Executive to pay the tax claimed and ▇▇▇ for a refund or contest the tax in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such tax and ▇▇▇ for a refund, the Company shall advance the amount of such payment to the Executive, (including interest or penalties with respect thereto) and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (bincluding interest or penalties with respect thereto) aboveimposed with respect to such advance or with respect to any imputed income with respect to such advance. The Company shall be required to consult with and keep the Executive fully apprised of developments and actions being considered or taken with respect to such claim, Employer audit or proceeding. The Company’s control of the contest shall pay be limited to Executive, issues with respect to which such a Gross-Up Payment would be payable or refundable hereunder and the Executive shall pay be entitled to Employersettle or contest, as the case may be, any other issue. Each party agrees to keep the full amount necessary other party fully apprised of developments concerning such claim, audit or proceeding and to make either Executive cooperate with the other in good faith in order to effectively resolve such claim, audit or Employer whole had the excise tax initially been computed as subsequently adjustedproceeding. (vi) For purposes of this Subsection (c), a determination of whether a payment is subject to Excise Tax, including the amount but not limited to, a determination of any underpaid or overpaid excise taxchange in control, and any related interest and/or penalties due shall be made pursuant to Section 280G of the Internal Revenue ServiceCode of 1986, as amended.

Excise Tax. (a) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or policy of Employer in connection with, on account of, or as a result of, such Change in Control ("“Total Payments"”) will be subject to the excise tax provisions of Section 4999 of the Code, or any successor section thereof, Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment (the "“Gross-Up Payment"”), sufficient to cover the full cost of such excise taxes and Executive's ’s federal, state and local income and employment taxes on this additional payment payment, so that the net amount retained by Executive, after the payment of all such excise taxes on the Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine the amount of the Gross-Up Payment to be made to Executive pursuant to the preceding subsection. Prior to the making of any such Gross-Up Payment, either party may request a determination as to the amount of such Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employer's expense, by independent tax counsel selected by Executive and approved by Employer (which approval shall not unreasonably be withheld), and such determination shall be conclusive and binding on the parties. Employer shall provide such information as such counsel may reasonably request, and such counsel may engage accountants or other experts at Employer's expense to the extent that they deem necessary or advisable to enable them to reach a determination. The term "independent tax counsel," as used herein, shall mean a law firm of recognized expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.

Excise Tax. (a) In the event that a Change in Control ---------- shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or policy of Employer in connection with, on account of, or as a result of, such Change in Control ("Total Payments") will be subject to the excise tax provisions of Section 4999 of the Code, or any successor section thereof, Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment (the "Gross-Up Payment"), sufficient to cover the full cost of such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment payment, so that the net amount retained by Executive, after the payment of all such excise taxes on the Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine the amount of the Gross-Up Payment to be made to Executive pursuant to the preceding subsection. Prior to the making of any such Gross-Up Payment, either party may request a determination as to the amount of such Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employer's expense, by independent tax counsel selected by Executive and approved by Employer (which approval shall not unreasonably be withheld), and such determination shall be conclusive and binding on the parties. Employer shall provide such information as such counsel may reasonably request, and such counsel may engage accountants or other experts at Employer's expense to the extent that they deem necessary or advisable to enable them to reach a determination. The term "independent tax counsel," as used herein, shall mean a law firm of recognized expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.

Excise Tax. (ai) In the event that any payment or benefit received or to be received by the Executive in connection with a Change change in Control shall occurcontrol or a termination of the Executive’s employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a change in control or any person affiliated with the Company or such person) (all such payments and a final determination is made by legislationbenefits being hereinafter called “Total Payments”), regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, such that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or policy of Employer in connection with, on account of, or as a result of, such Change in Control ("Total Payments") will be subject (in whole or in part) to the excise tax provisions of imposed under Section 4999 of the CodeInternal Revenue Code of 1986, or any successor section thereofas amended (“Excise Tax”) on such payments and benefits, then the Company shall pay to the Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment an additional amount (the "“Gross-Up Payment"), sufficient to cover the full cost of ”) such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by the Executive, after deduction of the payment of all such excise taxes on the Total Payments, Excise Tax and all any federal, state and local income and employment taxes and excise taxes tax on the Gross-Up Payment, shall will be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereonPayment. For this purpose, Executive shall be deemed to be in the highest marginal rate purposes of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made to and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive pursuant or the Company may request, prior to the preceding subsection. Prior time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the making of any such Gross-Up PaymentExcise Tax and, either party may request a determination as to if so, the amount of such Excise Tax and the federal, state and local tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employer's the Company’s expense, by independent tax counsel selected by the Executive and approved by Employer the Company (which with such approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on the both parties. Employer shall The Company agrees to provide any information reasonably requested by such information as such counsel may reasonably request, and such tax counsel. Tax counsel may engage accountants or other experts experts, at Employer's expense the Company’s expense, to the extent that they deem deemed necessary or advisable to enable for them to reach a determination. The For these purposes, the term "independent “tax counsel," as used herein, ” shall mean a law firm of recognized with expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determinationmatters. (ciii) In the event that the Internal Revenue Service Excise Tax is subsequently adjusts determined to be less than the excise amount taken into account hereunder, the Executive will repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax computation imposed on the Gross-Up Payment, without any interest thereon. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Company will make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made pursuant a Gross-Up Payment (plus any interest, penalties or additions payable by the Executive with respect to subsections 4(asuch excess and such portion) at the time that the amount of such excess is finally determined, without any interest thereon. (iv) Each party agrees to notify the other party, in writing, of any claim that, if successful, would require the payment by the Company of a Gross-Up Payment or might entitle the Company to a refund of all or part of any previous Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive or Company is informed in writing of such claim or otherwise becomes aware of such claim. If notice of the claim arose as a result of a claim made against the Executive by a taxing authority, Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives notice to the Company. If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to reasonably participate in any proceedings relating to such claim. The Company shall bear and pay directly all costs and expenses (including legal fees and additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (v) Notwithstanding the foregoing, the Company shall control all audits and proceedings taken in connection with any claim, audit or proceeding involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim, audit or proceeding and may, at its sole option, either direct the Executive to pay the tax claimed and ▇▇▇ for a refund or contest the tax in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such tax and ▇▇▇ for a refund, the Company shall advance the amount of such payment to the Executive, (including interest or penalties with respect thereto) and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (bincluding interest or penalties with respect thereto) aboveimposed with respect to such advance or with respect to any imputed income with respect to such advance. The Company shall be required to consult with and keep the Executive fully apprised of developments and actions being considered or taken with respect to such claim, Employer audit or proceeding. The Company’s control of the contest shall pay be limited to Executive, issues with respect to which such a Gross-Up Payment would be payable or refundable hereunder and the Executive shall pay be entitled to Employersettle or contest, as the case may be, any other issue. Each party agrees to keep the full amount necessary other party fully apprised of developments concerning such claim, audit or proceeding and to make either Executive cooperate with the other in good faith in order to effectively resolve such claim, audit or Employer whole had the excise tax initially been computed as subsequently adjustedproceeding. (vi) For purposes of this Subsection (c), a determination of whether a payment is subject to Excise Taxes, including the amount but not limited to, a determination of any underpaid or overpaid excise taxchange in control, and any related interest and/or penalties due shall be made pursuant to Section 280G of the Internal Revenue ServiceCode of 1986, as amended.

Excise Tax. (a) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or policy of Employer in connection with, on account of, or as a result of, such Change in Control ("Total Payments") will be subject to the excise tax provisions of Section 4999 of the Code, or any successor section thereof, Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment (the "Gross-Up Payment"), sufficient to cover the full cost of such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment payment, so that the net amount retained by Executive, after the payment of all such excise taxes on the Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine the amount of the Gross-Up Payment to be made to Executive pursuant to the preceding subsection. Prior to the making of any such Gross-Up Payment, either party may request a determination as to the amount of such Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employer's expense, by independent tax counsel selected by Executive and approved by Employer (which approval shall not unreasonably be withheld), and such determination shall be conclusive and binding on the parties. Employer shall provide such information as such counsel may reasonably request, and such counsel may engage accountants or other experts at Employer's expense to the extent that they deem necessary or advisable to enable them to reach a determination. The term "independent tax counsel," as used herein, shall mean a law firm of recognized expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.

Excise Tax. If any of the payments or benefits due to Employee under this Agreement would otherwise result in a liability for any excise taxes pursuant to Internal Revenue Code (a“Code”) In Section 4999 (“Excise Tax”) (whether at the event time of payment or upon a later IRS audit), the Company and Employee agree to use commercially reasonable efforts to restructure, in a manner reasonably acceptable to the Company and Employee, such payments or benefits due to Employee so that a Change in Control shall occursuch Excise Tax is eliminated or minimized to the extent permitted by applicable law. If, despite the use of commercially reasonable efforts, the Company and a final determination is made by legislationEmployee are unable, regulationconsistent with applicable law, ruling directed to Executive agree on the restructuring of the payments or Employerbenefits due to Employee under this Agreement to eliminate such Excise Tax consistent with legal requirements, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate Company will reimburse Employee for the amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or policy of Employer in connection with, on account of, or as a result of, such Change in Control ("Total Payments") will be subject to the excise tax provisions of Section 4999 of the Code, or any successor section thereof, Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment (the "Gross-Up Payment"), sufficient to cover the full cost of such excise taxes and Executive's Excise Tax plus all federal, state and local income and employment taxes on applicable to the Company’s payment of such Excise Tax, including any additional taxes due under Section 4999 of the Code with respect to payments made pursuant to this provision. Calculations for these purposes will assume the highest marginal rate for individuals applicable at the time of calculation. The intent of this section is that the Company will pay Employee an additional payment so amount (the “Gross-Up Payment”) such that the net amount retained by ExecutiveEmployee after deduction of (i) any Excise Tax imposed on any such payment or benefit and (ii) any Excise Tax, after the payment of all such excise taxes on the Total Payments, and all federal, state and or local income and employment income, and/or payroll taxes and excise taxes imposed on the Gross-Up Payment, shall be will equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine the amount of such payment or benefit reduced by all applicable taxes on such amount other than the Excise Tax; provided, that the Gross-Up Payment payment will not include any additions to be made to Executive pursuant to the preceding subsection. Prior to the making of any such Gross-Up Payment, either party may request a determination as to the amount of such Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employer's expense, by independent tax counsel selected by Executive and approved by Employer (which approval shall not unreasonably be withheld), and such determination shall be conclusive and binding imposed on the parties. Employer shall provide such information as such counsel may reasonably request, and such counsel may engage accountants or other experts at Employer's expense to Employee by reason of Section 409A of the extent that they deem necessary or advisable to enable them to reach a determination. The term "independent tax counsel," as used herein, shall mean a law firm of recognized expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determinationCode. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.”

Excise Tax. (ai) In the event that any payment or benefit received or to be received by the Executive in connection with a Change change in Control shall occurcontrol or a termination of the Executive’s employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a change in control or any person affiliated with the Company or such person) (all such payments and a final determination is made by legislationbenefits being hereinafter called “Total Payments”), regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, such that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or policy of Employer in connection with, on account of, or as a result of, such Change in Control ("Total Payments") will be subject (in whole or in part) to the excise tax provisions of imposed under Section 4999 of the CodeInternal Revenue Code of 1986, or any successor section thereofas amended (“Excise Tax”) on such payments and benefits, then the Company shall pay to the Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment an additional amount (the "“Gross-Up Payment"), sufficient to cover the full cost of ”) such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by the Executive, after deduction of the payment of all such excise taxes on the Total Payments, Excise Tax and all any federal, state and local income and employment taxes and excise taxes tax on the Gross-Up Payment, shall will be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereonPayment. For this purpose, Executive shall be deemed to be in the highest marginal rate purposes of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made to and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive pursuant or the Company may request, prior to the preceding subsection. Prior time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the making of any such Gross-Up PaymentExcise Tax and, either party may request a determination as to if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employer's the Company’s expense, by independent tax counsel selected by the Executive and approved by Employer the Company (which with such approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on the both parties. Employer shall The Company agrees to provide any information reasonably requested by such information as such counsel may reasonably request, and such tax counsel. Tax counsel may engage accountants or other experts experts, at Employer's expense the Company’s expense, to the extent that they deem deemed necessary or advisable to enable for them to reach a determination. The For these purposes, the term "independent “tax counsel," as used herein, ” shall mean a law firm of recognized with expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determinationmatters. (ciii) In the event that the Internal Revenue Service Excise Tax is subsequently adjusts determined to be less than the excise amount taken into account hereunder, the Executive will repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax computation imposed on the Gross-Up Payment, without any interest thereon. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Company will make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made pursuant a Gross-Up Payment (plus any interest, penalties or additions payable by the Executive with respect to subsections 4(asuch excess and such portion) at the time that the amount of such excess is finally determined, without any interest thereon. (iv) Each party agrees to notify the other party, in writing, of any claim that, if successful, would require the payment by the Company of a Gross-Up Payment or might entitle the Company to a refund of all or part of any previous Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive or Company is informed in writing of such claim or otherwise becomes aware of such claim. If notice of the claim arose as a result of a claim made against the Executive by a taxing authority, Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which she gives notice to the Company. If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to reasonably participate in any proceedings relating to such claim. The Company shall bear and pay directly all costs and expenses (including legal fees and additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (v) Notwithstanding the foregoing, the Company shall control all audits and proceedings taken in connection with any claim, audit or proceeding involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim, audit or proceeding and may, at its sole option, either direct the Executive to pay the tax claimed and ▇▇▇ for a refund or contest the tax in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such tax and ▇▇▇ for a refund, the Company shall advance the amount of such payment to the Executive, (including interest or penalties with respect thereto) and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (bincluding interest or penalties with respect thereto) aboveimposed with respect to such advance or with respect to any imputed income with respect to such advance. The Company shall be required to consult with and keep the Executive fully apprised of developments and actions being considered or taken with respect to such claim, Employer audit or proceeding. The Company’s control of the contest shall pay be limited to Executive, issues with respect to which such a Gross-Up Payment would be payable or refundable hereunder and the Executive shall pay be entitled to Employersettle or contest, as the case may be, any other issue. Each party agrees to keep the full amount necessary other party fully apprised of developments concerning such claim, audit or proceeding and to make either Executive cooperate with the other in good faith in order to effectively resolve such claim, audit or Employer whole had the excise tax initially been computed as subsequently adjustedproceeding. (vi) For purposes of this Subsection (c), a determination of whether a payment is subject to Excise Taxes, including the amount but not limited to, a determination of any underpaid or overpaid excise taxchange in control, and any related interest and/or penalties due shall be made pursuant to Section 280G of the Internal Revenue ServiceCode of 1986, as amended.

Excise Tax. (ai) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's employment (1) hereunder, and (2) whether pursuant to the terms of this Agreement or any other plan, program arrangement or policy of Employer agreement with the Company, any person whose actions result in connection with, on account of, a change in control or as a result of, any person affiliated with the Company or such Change in Control person) (all such payments and benefits being hereinafter called "Total Payments") ), such that the Executive will be subject (in whole or in part) to the excise tax provisions of imposed under Code Section 4999 of ("Excise Tax") on such payments and benefits, then the Code, or any successor section thereof, Company shall pay to the Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment an additional amount (the "Gross-Up Payment"), sufficient to cover the full cost of ) such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by the Executive, after deduction of the payment of all such excise taxes on the Total Payments, Excise Tax and all any federal, state and local income and employment taxes and excise taxes tax on the Gross-Up Payment, shall will be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereonPayment. For this purpose, Executive shall be deemed to be in the highest marginal rate purposes of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made to and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive pursuant or the Company may request, prior to the preceding subsection. Prior time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the making of any such Gross-Up PaymentExcise Tax and, either party may request a determination as to if so, the amount of such Excise Tax and the federal, state and local tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employerthe Company's expense, by independent tax counsel selected by the Executive and approved by Employer the Company (which with such approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on the both parties. Employer shall provide such information as such counsel may reasonably request, and such counsel may engage accountants or other experts at Employer's expense to the extent that they deem necessary or advisable to enable them to reach a determination. The term "independent tax counsel," as used herein, shall mean a law firm of recognized expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.Company agrees to

Excise Tax. (ai) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's employment (1) hereunder, and (2) whether pursuant to the terms of this Agreement or any other plan, program arrangement or policy of Employer agreement with the Company, any person whose actions result in connection with, on account of, a change in control or as a result of, any person affiliated with the Company or such Change in Control person) (all such payments and benefits being hereinafter called "Total Payments") ), such that the Executive will be subject (in whole or in part) to the excise tax provisions of imposed under Code Section 4999 of ("Excise Tax") on such payments and benefits, then the Code, or any successor section thereof, Company shall pay to the Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment an additional amount (the "Gross-Up Payment"), sufficient to cover the full cost of ) such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by the Executive, after deduction of the payment of all such excise taxes on the Total Payments, Excise Tax and all any federal, state and local income and employment taxes and excise taxes tax on the Gross-Up Payment, shall will be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate purposes of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made to and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive pursuant or the Company may request, prior to the preceding subsection. Prior time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the making of any such Gross-Up PaymentExcise Tax and, either party may request a determination as to if so, the amount of such Excise Tax and the federal, state and local tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employerthe Company's expense, by independent tax counsel selected by the Executive and approved by Employer the Company (which with such approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on the both parties. Employer shall The Company agrees to provide any information reasonably requested by such information as such counsel may reasonably request, and such tax counsel. Tax counsel may engage accountants or other experts experts, at Employerthe Company's expense expense, to the extent that they deem deemed necessary or advisable to enable for them to reach a determination. The For these purposes, the term "independent tax counsel," as used herein, shall mean a law firm of recognized with expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determinationmatters. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.

Excise Tax. (a) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or policy of Employer in connection with, on account of, or as a result of, such Change in Control ("Total Payments") will be subject to the excise tax provisions of Section 4999 of the Code, or any successor section thereof, Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment (the "Gross-Up Payment"), sufficient to cover the full cost of such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment payment, so that the net amount retained by Executive, after the payment of all such excise taxes on the Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine the amount of the Gross-Up Payment to be made to Executive pursuant to the preceding subsection. Prior to the making of any such Gross-Up Payment, either party may request a determination as to the amount of such Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employer's expense, by independent tax counsel selected by Executive and approved by Employer (which approval shall not unreasonably be withheld), and such determination shall be conclusive and binding on the parties. Employer shall provide such information as such counsel may reasonably request, and such counsel may engage accountants or other experts at Employer's expense to the extent that they deem necessary or advisable to enable them to reach a determination. The term "independent tax counsel," as used herein, shall mean a law firm of recognized expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service. 5.

Excise Tax. (a) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or policy of Employer in connection with, on account of, or as a result of, such Change in Control ("Total Payments") will be subject to the excise tax provisions of Section 4999 of the Code, or any successor section thereof, Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment (the "Gross-Up Payment"), sufficient to cover the full cost of such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by Executive, after the payment of all such excise taxes on the Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(13(a)(i) and (2ii) above. (b) Employer and Executive shall mutually and reasonably determine the amount of the Gross-Up Payment to be made to Executive pursuant to the preceding subsection. Prior to the making of any such Gross-Up Payment, either party may request a determination as to the amount of such Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employer's expense, by independent tax counsel selected by Executive and approved by Employer (which approval shall not unreasonably be withheld), and such determination shall be conclusive and binding on the parties. Employer shall provide such information as such counsel may reasonably request, and such counsel may engage accountants or other experts at Employer's expense to the extent that they deem necessary or advisable to enable them to reach a determination. The term "independent tax counsel," as used herein, shall mean a law firm of recognized expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.

Excise Tax. (ai) In the event that any payment or benefit received or to be received by the Executive in connection with a Change change in Control shall occurcontrol or a termination of the Executive’s employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a change in control or any person affiliated with the Company or such person) (all such payments and a final determination is made by legislationbenefits being hereinafter called “Total Payments”), regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, such that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or policy of Employer in connection with, on account of, or as a result of, such Change in Control ("Total Payments") will be subject (in whole or in part) to the excise tax provisions of imposed under Section 4999 of the CodeInternal Revenue Code of 1986, or any successor section thereofas amended (“Excise Tax”) on such payments and benefits, then the Company shall pay to the Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment an additional amount (the "“Gross-Up Payment"), sufficient to cover the full cost of ”) such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by the Executive, after deduction of the payment of all such excise taxes on the Total Payments, Excise Tax and all any federal, state and local income and employment taxes and excise taxes tax on the Gross-Up Payment, shall will be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate purposes of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made to and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive pursuant or the Company may request, prior to the preceding subsection. Prior time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the making of any such Gross-Up PaymentExcise Tax and, either party may request a determination as to if so, the amount of such Excise Tax and the federal, state and local tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employer's the Company’s expense, by independent tax counsel selected by the Executive and approved by Employer the Company (which with such approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on the both parties. Employer shall The Company agrees to provide any information reasonably requested by such information as such counsel may reasonably request, and such tax counsel. Tax counsel may engage accountants or other experts experts, at Employer's expense the Company’s expense, to the extent that they deem deemed necessary or advisable to enable for them to reach a determination. The For these purposes, the term "independent “tax counsel," as used herein, ” shall mean a law firm of recognized with expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determinationmatters. (ciii) In the event that the Internal Revenue Service Excise Tax is subsequently adjusts determined to be less than the excise amount taken into account hereunder, the Executive will repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax computation imposed on the Gross-Up Payment, without any interest thereon. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Company will make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made pursuant a Gross-Up Payment (plus any interest, penalties or additions payable by the Executive with respect to subsections 4(asuch excess and such portion) at the time that the amount of such excess is finally determined, without any interest thereon. (iv) Each party agrees to notify the other party, in writing, of any claim that, if successful, would require the payment by the Company of a Gross-Up Payment or might entitle the Company to a refund of all or part of any previous Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive or Company is informed in writing of such claim or otherwise becomes aware of such claim. If notice of the claim arose as a result of a claim made against the Executive by a taxing authority, Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives notice to the Company. If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to reasonably participate in any proceedings relating to such claim. The Company shall bear and pay directly all costs and expenses (including legal fees and additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (v) Notwithstanding the foregoing, the Company shall control all audits and proceedings taken in connection with any claim, audit or proceeding involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim, audit or proceeding and may, at its sole option, either direct the Executive to pay the tax claimed and ▇▇▇ for a refund or contest the tax in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such tax and ▇▇▇ for a refund, the Company shall advance the amount of such payment to the Executive, (including interest or penalties with respect thereto) and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (bincluding interest or penalties with respect thereto) aboveimposed with respect to such advance or with respect to any imputed income with respect to such advance. The Company shall be required to consult with and keep the Executive fully apprised of developments and actions being considered or taken with respect to such claim, Employer audit or proceeding. The Company’s control of the contest shall pay be limited to Executive, issues with respect to which such a Gross-Up Payment would be payable or refundable hereunder and the Executive shall pay be entitled to Employersettle or contest, as the case may be, any other issue. Each party agrees to keep the full amount necessary other party fully apprised of developments concerning such claim, audit or proceeding and to make either Executive cooperate with the other in good faith in order to effectively resolve such claim, audit or Employer whole had the excise tax initially been computed as subsequently adjustedproceeding. (vi) For purposes of this Subsection (c), a determination of whether a payment is subject to Excise Taxes, including the amount but not limited to, a determination of any underpaid or overpaid excise taxchange in control, and any related interest and/or penalties due shall be made pursuant to Section 280G of the Internal Revenue ServiceCode of 1986, as amended.

Excise Tax. (a) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or policy of Employer in connection with, on account of, or as a result of, such Change in Control ("Total Payments") will be subject to the excise tax provisions of Section 4999 of the Code, or any successor section thereof, Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment (the "Gross-Up Payment"), sufficient to cover the full cost of such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by Executive, after the payment of all such excise taxes on the Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine the amount of the Gross-Up Payment to be made to Executive pursuant to the preceding subsection. Prior to the making of any such Gross-Up Payment, either party may request a determination as to the amount of such Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employer's expense, by independent tax counsel selected by Executive and approved by Employer (which approval shall not unreasonably be withheld), and such determination shall be conclusive and binding on the parties. Employer shall provide such information as such counsel may reasonably request, and such counsel may engage accountants or other experts at Employer's expense to the extent that they deem necessary or advisable to enable them to reach a determination. The term "independent tax counsel," as used herein, shall mean a law firm of recognized expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.the

Excise Tax. (ai) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's employment (1) hereunder, and (2) whether pursuant to the terms of this Agreement or any other plan, program arrangement or policy of Employer agreement with the Company, any person whose actions result in connection with, on account of, a change in control or as a result of, any person affiliated with the Company or such Change in Control person) (all such payments and benefits being hereinafter called "Total Payments") ), such that the Executive will be subject (in whole or in part) to the excise tax provisions of imposed under Code Section 4999 of ("Excise Tax") on such payments and benefits, then the Code, or any successor section thereof, Company shall pay to the Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment an additional amount (the "Gross-Up Payment"), sufficient to cover the full cost of ) such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by the Executive, after deduction of the payment of all such excise taxes on the Total Payments, Excise Tax and all any federal, state and local income and employment taxes and excise taxes tax on the Gross-Up Payment, shall will be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereonPayment. For this purpose, Executive shall be deemed to be in the highest marginal rate purposes of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made to and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive pursuant or the Company may request, prior to the preceding subsection. Prior time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the making of any such Gross-Up PaymentExcise Tax and, either party may request a determination as to if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employerthe Company's expense, by independent tax counsel selected by the Executive and approved by Employer the Company (which with such approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on the both parties. Employer shall The Company agrees to provide any information reasonably requested by such information as such counsel may reasonably request, and such tax counsel. Tax counsel may engage accountants or other experts experts, at Employerthe Company's expense expense, to the extent that they deem deemed necessary or advisable to enable for them to reach a determination. The For these purposes, the term "independent tax counsel," as used herein, shall mean a law firm of recognized with expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determinationmatters. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.

Excise Tax. (ai) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made or benefit received or to be received by the Executive in connection with a termination of the Executive's employment (1) hereunder, and (2) whether pursuant to the terms of this Amended and Restated Agreement or any other plan, program arrangement or policy of Employer agreement with the Company, any person whose actions result in connection with, on account of, a change in control or as a result of, any person affiliated with the Company or such Change in Control person) (all such payments and benefits being hereinafter called "Total Payments") ), such that the Executive will be subject (in whole or in part) to the excise tax provisions of imposed under Code Section 4999 of ("Excise Tax") on such payments and benefits, then the Code, or any successor section thereof, Company shall pay to the Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment an additional amount (the "Gross-Up Payment"), sufficient to cover the full cost of ) such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by the Executive, after deduction of the payment of all such excise taxes on the Total Payments, Excise Tax and all any federal, state and local income and employment taxes and excise taxes tax on the Gross-Up Payment, shall will be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate purposes of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made to and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive pursuant or the Company may request, prior to the preceding subsection. Prior time any payments under this Amended and Restated Agreement are made, a determination of whether any or all of the Total Payments will be subject to the making of any such Gross-Up PaymentExcise Tax and, either party may request a determination as to if so, the amount of such Excise Tax and the federal, state and local tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employerthe Company's expense, by independent tax counsel selected by the Executive and approved by Employer the Company (which with such approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on the both parties. Employer shall The Company agrees to provide any information reasonably requested by such information as such counsel may reasonably request, and such tax counsel. Tax counsel may engage accountants or other experts experts, at Employerthe Company's expense expense, to the extent that they deem deemed necessary or advisable to enable for them to reach a determination. The For these purposes, the term "independent tax counsel," as used herein, shall mean a law firm of recognized with expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determinationmatters. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.

Excise Tax. (ai) In the event that any payment or benefit received or to be received by the Executive in connection with a Change change in Control shall occurcontrol or a termination of the Executive’s employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a change in control or any person affiliated with the Company or such person) (all such payments and a final determination is made by legislationbenefits being hereinafter called “Total Payments”), regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, such that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or policy of Employer in connection with, on account of, or as a result of, such Change in Control ("Total Payments") will be subject (in whole or in part) to the excise tax provisions of imposed under Section 4999 of the CodeInternal Revenue Code of 1986, or any successor section thereofas amended (“Excise Tax”) on such payments and benefits, then the Company shall pay to the Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment an additional amount (the "“Gross-Up Payment"), sufficient to cover the full cost of ”) such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by the Executive, after deduction of the payment of all such excise taxes on the Total Payments, Excise Tax and all any federal, state and local income and employment taxes and excise taxes tax on the Gross-Up Payment, shall will be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereonPayment. For this purpose, Executive shall be deemed to be in the highest marginal rate purposes of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made to and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive pursuant or the Company may request, prior to the preceding subsection. Prior time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the making of any such Gross-Up PaymentExcise Tax and, either party may request a determination as to if so, the amount of such Excise Tax and the federal, state and local tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employer's the Company’s expense, by independent tax counsel selected by the Executive and approved by Employer the Company (which with such approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on the both parties. Employer shall The Company agrees to provide any information reasonably requested by such information as such counsel may reasonably request, and such tax counsel. Tax counsel may engage accountants or other experts experts, at Employer's expense the Company’s expense, to the extent that they deem deemed necessary or advisable to enable for them to reach a determination. The For these purposes, the term "independent “tax counsel," as used herein, ” shall mean a law firm of recognized with expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determinationmatters. (ciii) In the event that the Internal Revenue Service Excise Tax is subsequently adjusts determined to be less than the excise amount taken into account hereunder, the Executive will repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax computation imposed on the Gross-Up Payment, without any interest thereon. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Company will make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made pursuant a Gross-Up Payment (plus any interest, penalties or additions payable by the Executive with respect to subsections 4(asuch excess and such portion) at the time that the amount of such excess is finally determined, without any interest thereon. (iv) Each party agrees to notify the other party, in writing, of any claim that, if successful, would require the payment by the Company of a Gross-Up Payment or might entitle the Company to a refund of all or part of any previous Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive or Company is informed in writing of such claim or otherwise becomes aware of such claim. If notice of the claim arose as a result of a claim made against the Executive by a taxing authority, Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which she gives notice to the Company. If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to reasonably participate in any proceedings relating to such claim. The Company shall bear and pay directly all costs and expenses (including legal fees and additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (v) Notwithstanding the foregoing, the Company shall control all audits and proceedings taken in connection with any claim, audit or proceeding involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim, audit or proceeding and may, at its sole option, either direct the Executive to pay the tax claimed and ▇▇▇ for a refund or contest the tax in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such tax and ▇▇▇ for a refund, the Company shall advance the amount of such payment to the Executive, (including interest or penalties with respect thereto) and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (bincluding interest or penalties with respect thereto) aboveimposed with respect to such advance or with respect to any imputed income with respect to such advance. The Company shall be required to consult with and keep the Executive fully apprised of developments and actions being considered or taken with respect to such claim, Employer audit or proceeding. The Company’s control of the contest shall pay be limited to Executive, issues with respect to which such a Gross-Up Payment would be payable or refundable hereunder and the Executive shall pay be entitled to Employersettle or contest, as the case may be, any other issue. Each party agrees to keep the full amount necessary other party fully apprised of developments concerning such claim, audit or proceeding and to make either Executive cooperate with the other in good faith in order to effectively resolve such claim, audit or Employer whole had the excise tax initially been computed as subsequently adjustedproceeding. (vi) For purposes of this Subsection (c), a determination of whether a payment is subject to Excise Taxes, including the amount but not limited to, a determination of any underpaid or overpaid excise taxchange in control, and any related interest and/or penalties due shall be made pursuant to Section 280G of the Internal Revenue ServiceCode of 1986, as amended.

Excise Tax. (ai) In the event that any payment or benefit received or to be received by the Employee in connection with a Change termination of the Employee’s employment (whether pursuant to the terms of this Second Amendment to Amended and Restated Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in Control shall occura change in control or any person affiliated with the Company or such person) (all such payments and benefits being hereinafter called “Total Payments”), and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, such that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or policy of Employer in connection with, on account of, or as a result of, such Change in Control ("Total Payments") Employee will be subject (in whole or in part) to the excise tax provisions of imposed under Code Section 4999 of (“Excise Tax”) on such payments and benefits, then the Code, or any successor section thereof, Executive Company shall be entitled pay to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment the Employee an additional amount (the "“Gross-Up Payment"), sufficient to cover the full cost of ”) such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by Executivethe Employee, after deduction of the payment of all such excise taxes on the Total Payments, Excise Tax and all any federal, state and local income and employment taxes and excise taxes tax on the Gross-Up Payment, shall will be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate purposes of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine determining the amount of the Gross-Up Payment, the Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made to Executive pursuant and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Employee’s residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Employee or the Company may request, prior to the preceding subsection. Prior time any payments under this Second Amendment to Amended and Restated Agreement are made, a determination of whether any or all of the Total Payments will be subject to the making of any such Gross-Up PaymentExcise Tax and, either party may request a determination as to if so, the amount of such Excise Tax and the federal, state and local tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employer's the Company’s expense, by independent tax counsel selected by Executive the Employee and approved by Employer the Company (which with such approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on the both parties. Employer shall The Company agrees to provide any information reasonably requested by such information as such counsel may reasonably request, and such tax counsel. Tax counsel may engage accountants or other experts experts, at Employer's expense the Company’s expense, to the extent that they deem deemed necessary or advisable to enable for them to reach a determination. The For these purposes, the term "independent “tax counsel," as used herein, ” shall mean a law firm of recognized with expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determinationmatters. (ciii) In the event that the Internal Revenue Service Excise Tax is subsequently adjusts determined to be less than the excise amount taken into account hereunder, the Employee will repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax computation imposed on the Gross-Up Payment, without any interest thereon. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Company will make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made pursuant a Gross-Up Payment (plus any interest, penalties or additions payable by the Employee with respect to subsections 4(asuch excess and such portion) at the time that the amount of such excess is finally determined, without any interest thereon. (iv) Each party agrees to notify the other party, in writing, of any claim that, if successful, would require the payment by the Company of a Gross-Up Payment or might entitle the Company to a refund of all or part of any previous Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Employee or Company is informed in writing of such claim or otherwise becomes aware of such claim. If notice of the claim arose as a result of a claim made against the Employee by a taxing authority, Employee shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives notice to the Company. If the Company notifies the Employee in writing prior to the expiration of such period that it desires to contest such claim, the Employee shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Employee and approved by the Company (with such approval not being unreasonably withheld), (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to reasonably participate in any proceedings relating to such claim. The Company shall bear and pay directly all costs and expenses (including legal fees and additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Employee harmless, on an after-tax basis, for any Excise Tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (v) Notwithstanding the foregoing, the Company shall control all audits and proceedings taken in connection with any claim, audit or proceeding involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim, audit or proceeding and may, at its sole option, either direct the Employee to pay the tax claimed and ▇▇▇ for a refund or contest the tax in any permissible manner, and the Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Employee to pay such tax and ▇▇▇ for a refund, the Company shall advance the amount of such payment to the Employee, (including interest or penalties with respect thereto) and shall indemnify and hold the Employee harmless, on an after-tax basis, for any Excise Tax or income tax (bincluding interest or penalties with respect thereto) aboveimposed with respect to such advance or with respect to any imputed income with respect to such advance. The Company shall be required to consult with and keep the Employee fully apprised of developments and actions being considered or taken with respect to such claim, Employer audit or proceeding. The Company’s control of the contest shall pay be limited to Executive, issues with respect to which such a Gross-Up Payment would be payable or Executive refundable hereunder and the Employee shall pay be entitled to Employersettle or contest, as the case may be, any other issue. Each party agrees to keep the full amount necessary other party fully apprised of developments concerning such claim, audit or proceeding and to make either Executive cooperate with the other in good faith in order to effectively resolve such claim, audit or Employer whole had the excise tax initially been computed as subsequently adjustedproceeding. (vi) For purposes of this Subsection (c), a determination of whether a payment is subject to Excise Taxes, including the amount but not limited to, a determination of any underpaid or overpaid excise taxChange in Control, and any related interest and/or penalties due shall be made pursuant to the Internal Revenue Service.Code Section 280G.

Excise Tax. (a) 5.1 In the event any payment that a Change in Control shall occuris either received by the Executive or paid by the Company on his behalf, and a final determination is made by legislation, regulation, ruling directed or any other benefit provided to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that pursuant to the aggregate amount terms of any arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or policy of Employer other benefit is in connection withwith the Executive’s employment by the Company) (collectively the “Payment”), on account of, or as a result of, such Change in Control ("Total Payments") will be is subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the “Excise Tax”), Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 5 if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payment does not exceed the lesser of A) 110% of the greatest amount that could be paid to Participant without giving rise to any Excise Tax (the “Safe Harbor Amount”) or B) $100,000, then no Gross-Up Payment shall be made to Executive and the amounts payable under this Plan shall be reduced so that the Payment, in the aggregate, is reduced to the Safe Harbor Amount. 5.2 All determinations required to be made under this Section 5 including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within ten (10) business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company; provided that for purposes of determining the amount of any Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest effective rates applicable to individuals in the state or locality in which the Executive incurs income taxes in the calendar year in which any such Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account limitations applicable to individuals subject to federal income tax at the highest marginal rates. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 5, shall be paid by the Company to the Executive (or to the appropriate taxing authority on the Executive’s behalf) within thirty (30) days following the date upon which the Executive provides written documentation that the related excise taxes have been remitted to the appropriate taxing authority (with the determination of the date of such payment made by the Company at its sole discretion); provided, that the Gross-Up Payment shall be paid no later than the end of the Executive’s taxable year next following the Executive’s taxable year in which the related excise taxes are remitted to the appropriate taxing authority (the “Required Gross-Up Payment Date”). If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall so indicate to the Executive in writing. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code, or any successor section thereof, Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment (the "Gross-Up Payment"), sufficient to cover the full cost of such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so it is possible that the net amount retained by Executive, after the payment of all such excise taxes on the Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine the amount of the Gross-Up Payment determined by the Accounting Firm to be made due to (or on behalf of) the Executive was lower than the amount actually due (“Underpayment”). In the event that the Company exhausts its remedies pursuant to Section 5.3 and the preceding subsection. Prior Executive thereafter is required to the making make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive as soon as administratively practicable following the date upon which the amount of the Underpayment is determined by the Accounting Firm (with the determination of the date of such payment made by the Company at its sole discretion), but in any event, no later than the Required Gross-Up PaymentPayment Date. 5.3 The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, either party may request a determination as to if successful, would require the amount payment by the Company of such any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order to effectively contest such claim and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest. Without limitation on the foregoing provisions of this Section 5.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, further, that if the Executive is requestedrequired to extend the statute of limitations to enable the Company to contest such claim, it the Executive may limit this extension solely to such contested amount. The Company’s control of the contest shall be made promptly, at Employer's expense, by independent tax counsel selected by Executive limited to issues with respect to which a Gross-Up Payment would be payable hereunder and approved by Employer (which approval shall not unreasonably be withheld), and such determination the Participant shall be conclusive and binding on the parties. Employer shall provide such information as such counsel may reasonably request, and such counsel may engage accountants entitled to settle or other experts at Employer's expense to the extent that they deem necessary or advisable to enable them to reach a determination. The term "independent tax counsel," as used herein, shall mean a law firm of recognized expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employercontest, as the case may be, any other issue raised by the full Internal Revenue Service or any other taxing authority. 5.4 If, after the receipt by the Executive of an amount necessary paid or advanced by the Company pursuant to make either this Section 5, the Executive or Employer whole had becomes entitled to receive any refund with respect to a Gross-Up Payment, the excise tax initially been computed as subsequently adjusted, including Executive shall promptly pay to the Company the amount of such refund received (together with any underpaid interest paid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Servicecredited thereon after taxes applicable thereto).

Excise Tax. (ai) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's employment (1) hereunder, and (2) whether pursuant to the terms of this Agreement or any other plan, program arrangement or policy of Employer agreement with the Company, any person whose actions result in connection with, on account of, a change in control or as a result of, any person affiliated with the Company or such Change in Control person) (all such payments and benefits being hereinafter called "Total Payments") ), such that the Executive will be subject (in whole or in part) to the excise tax provisions of imposed under Code Section 4999 of ("Excise Tax") on such payments and benefits, then the Code, or any successor section thereof, Company shall pay to the Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment an additional amount (the "Gross-Up Payment")) such that the net amount retained by the Executive, sufficient to cover after deduction of the full cost of such excise taxes Excise Tax and Executive's any federal, state and local income and employment taxes on this additional payment so that the net amount retained by Executive, after the payment of all such excise taxes on the Total Payments, and all federal, state and local income and employment taxes and excise taxes tax on the Gross-Up Payment, shall will be equal to the Total Payments. The Total Payments, however, shall total amount of payments required to be subject paid pursuant to any federal, state and local income and employment taxes thereonthis Agreement. For this purpose, Executive shall be deemed to be in the highest marginal rate purposes of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made to Executive pursuant to and state and local income taxes at the preceding subsection. Prior to highest marginal rate of taxation in the making state and locality of any the Executive's residence on such Gross-Up Paymentdate, either party may request a determination as to net of the amount of such Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employer's expense, by independent tax counsel selected by Executive and approved by Employer (which approval shall not unreasonably be withheld), and such determination shall be conclusive and binding on the parties. Employer shall provide such information as such counsel may reasonably request, and such counsel may engage accountants or other experts at Employer's expense to the extent that they deem necessary or advisable to enable them to reach a determination. The term "independent tax counsel," as used herein, shall mean a law firm of recognized expertise maximum deduction in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any taxes which could be obtained from deduction of such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determinationstate and local taxes. (cii) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either The Executive or Employer whole had the excise tax initially been computed as subsequently adjustedCompany may request, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due prior to the Internal Revenue Service.time any payments under this Agreement are made, a determination of whether any or all of the Total

Excise Tax. (a) In the event that any payment or benefit received or to be received by the Executive in connection with a Change in Control shall occuror the termination of the Executive’s employment, and a final determination is made by legislation, regulation, ruling directed to Executive whether such payments or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made to Executive (1) hereunder, and (2) benefits are received pursuant to the terms of this Agreement or any other plan, program arrangement or policy of Employer agreement with the Company, any person whose actions result in connection with, on account of, or as a result of, such Change in Control or any person affiliated with the Company or such person ("all such payments and benefits being hereinafter called “Total Payments") will ”), would be ​ ​ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ​ ​ Executive’s Initials ​ subject (in whole or part), to the excise tax provisions of (the “Excise Tax”) imposed under Section 4999 of the CodeInternal Revenue Code of 1986, or any successor section thereof, Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment as amended (the "“Code”), the Company shall pay to the Executive such additional amounts (the “Gross-Up Payment")”) as may be necessary to place the Executive in the same after-tax position as if no portion of the Total Payments had been subject to the Excise Tax. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, sufficient the Executive shall repay to cover the full cost Company, at the time that the amount of such excise taxes and Executive's federalreduction in Excise Tax is finally determined, state and local income and employment taxes on this additional payment so that the net amount retained by Executive, after the payment of all such excise taxes on the Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine the amount portion of the Gross-Up Payment attributable to be made to Executive pursuant such reduction (plus that portion of the Gross-Up Payment attributable to the preceding subsection. Prior Excise Tax and federal, state, and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the making extent that such repayment results in a reduction in Excise Tax and/or a federal, state, or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any such payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), either party may request a determination as 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 Gross-Up Paymentexcess is finally determined. If such a determination is requested, it shall be made promptly, at Employer's expense, by independent tax counsel selected by The Executive and approved by Employer (which approval the Company shall not unreasonably be withheld), and such determination shall be conclusive and binding on each reasonably cooperate with the parties. Employer shall provide such information as such counsel may reasonably request, and such counsel may engage accountants other in connection with any administrative or other experts at Employer's expense judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the extent that they deem necessary or advisable to enable them to reach a determination. The term "independent tax counsel," as used herein, shall mean a law firm of recognized expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determinationTotal Payments. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.

Excise Tax. (ai) In the event that any payment or benefit received or to be received by the Executive in connection with a Change change in Control shall occurcontrol or a termination of the Executive’s employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a change in control or any person affiliated with the Company or such person) (all such payments and a final determination is made by legislationbenefits being hereinafter called “Total Payments”), regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, such that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or policy of Employer in connection with, on account of, or as a result of, such Change in Control ("Total Payments") will be subject (in whole or in part) to the excise tax provisions of imposed under Code Section 4999 of (“Excise Tax”) on such payments and benefits, then the Code, or any successor section thereof, Company shall pay to the Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment an additional amount (the "“Gross-Up Payment"), sufficient to cover the full cost of ”) such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by the Executive, after deduction of the payment of all such excise taxes on the Total Payments, Excise Tax and all any federal, state and local income and employment taxes and excise taxes tax on the Gross-Up Payment, shall will be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereonPayment. For this purpose, Executive shall be deemed to be in the highest marginal rate purposes of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made to and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive pursuant or the Company may request, prior to the preceding subsection. Prior time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the making of any such Gross-Up PaymentExcise Tax and, either party may request a determination as to if so, the amount of such Excise Tax and the federal, state and local tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employer's the Company’s expense, by independent tax counsel selected by the Executive and approved by Employer the Company (which with such approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on the both parties. Employer shall The Company agrees to provide any information reasonably requested by such information as such counsel may reasonably request, and such tax counsel. Tax counsel may engage accountants or other experts experts, at Employer's expense the Company’s expense, to the extent that they deem deemed necessary or advisable to enable for them to reach a determination. The For these purposes, the term "independent “tax counsel," as used herein, ” shall mean a law firm of recognized with expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determinationmatters. (ciii) In the event that the Internal Revenue Service Excise Tax is subsequently adjusts determined to be less than the excise amount taken into account hereunder, the Executive will repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax computation imposed on the Gross-Up Payment, without any interest thereon. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Company will make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made pursuant a Gross-Up Payment (plus any interest, penalties or additions payable by the Executive with respect to subsections 4(asuch excess and such portion) at the time that the amount of such excess is finally determined, without any interest thereon. (iv) Each party agrees to notify the other party, in writing, of any claim that, if successful, would require the payment by the Company of a Gross-Up Payment or might entitle the Company to a refund of all or part of any previous Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive or Company is informed in writing of such claim or otherwise becomes aware of such claim. If notice of the claim arose as a result of a claim made against the Executive by a taxing authority, Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives notice to the Company. If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to reasonably participate in any proceedings relating to such claim. The Company shall bear and pay directly all costs and expenses (including legal fees and additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (v) Notwithstanding the foregoing, the Company shall control all audits and proceedings taken in connection with any claim, audit or proceeding involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim, audit or proceeding and may, at its sole option, either direct the Executive to pay the tax claimed and ▇▇▇ for a refund or contest the tax in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such tax and ▇▇▇ for a refund, the Company shall advance the amount of such payment to the Executive, (including interest or penalties with respect thereto) and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (bincluding interest or penalties with respect thereto) aboveimposed with respect to such advance or with respect to any imputed income with respect to such advance. The Company shall be required to consult with and keep the Executive fully apprised of developments and actions being considered or taken with respect to such claim, Employer audit or proceeding. The Company’s control of the contest shall pay be limited to Executive, issues with respect to which such a Gross-Up Payment would be payable or refundable hereunder and the Executive shall pay be entitled to Employersettle or contest, as the case may be, any other issue. Each party agrees to keep the full amount necessary other party fully apprised of developments concerning such claim, audit or proceeding and to make either Executive cooperate with the other in good faith in order to effectively resolve such claim, audit or Employer whole had the excise tax initially been computed as subsequently adjustedproceeding. (vi) For purposes of this Subsection (c), a determination of whether a payment is subject to Excise Taxes, including the amount but not limited to, a determination of any underpaid or overpaid excise taxchange in control, and any related interest and/or penalties due shall be made pursuant to the Internal Revenue Service.Code Section 280G.

Excise Tax. (a) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made or benefit received or to be received by the Executive in connection with termination of the Executive's employment (1) hereunder, regardless of cause and (2) whether pursuant to the terms of this Agreement or any other plan, program arrangement or policy of Employer agreement with the Company, any person whose actions result in connection with, on account of, a change in control or as a result of, any person affiliated with the Company or such Change in Control person) (all such payments and benefits being hereinafter called "Total Payments") ), such that the Executive will be subject (in whole or in part) to the excise tax provisions of imposed under Code Section 4999 of ("Excise Tax") on such payments and benefits, then the Code, or any successor section thereof, Company shall pay to the Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment an additional amount (the "Gross-Up Payment"), sufficient to cover the full cost of ) such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by the Executive, after deduction of the payment of all such excise taxes on the Total Payments, Excise Tax and all any federal, state and or local income and employment taxes and excise taxes tax on the Gross-Up Payment, shall will be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate purposes of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made to and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (b) The Executive pursuant or the Company may request, prior to the preceding subsection. Prior time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the making of any such Gross-Up PaymentExcise Tax and, either party may request a determination as to if so, the amount of such Excise Tax and the federal, state and local tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employerthe Company's expense, by independent tax counsel selected by the Executive and approved by Employer the Company (which with such approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on the both parties. Employer shall The Company agrees to provide any information reasonably requested by such information as such counsel may reasonably request, and such tax counsel. Tax counsel may engage accountants or other experts experts, at Employerthe Company's expense expense, to the extent that they deem deemed necessary or advisable to enable for them to reach a determination. The For these purposes, the term "independent tax counsel," as used herein, shall mean a law firm of recognized with expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determinationmatters. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.

Excise Tax. (a) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or policy of Employer in connection with, on account of, or as a result of, such Change in Control ("“Total Payments"”) will be subject to the excise tax provisions of Section 4999 of the Code, or any successor section thereof, Executive shall be entitled to receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment (the "“Gross-Up Payment"”), sufficient to cover the full cost of such excise taxes and Executive's ’s federal, state and local income and employment taxes on this additional payment so that the net amount retained by Executive, after the payment of all such excise taxes on the Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine the amount of the Gross-Up Payment to be made to Executive pursuant to the preceding subsection. Prior to the making of any such Gross-Up Payment, either party may request a determination as to the amount of such Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employer's ’s expense, by independent tax counsel selected by Executive and approved by Employer (which approval shall not unreasonably be withheld), and such determination shall be conclusive and binding on the parties. Employer shall provide such information as such counsel may reasonably request, and such counsel may engage accountants or other experts at Employer's ’s expense to the extent that they deem necessary or advisable to enable them to reach a determination. The term "“independent tax counsel," ” as used herein, shall mean a law firm of recognized expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's ’s announcement of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.