Common use of Excise Tax Clause in Contracts

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries to or for the benefit of Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 14) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax law, 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, are hereinafter collectively referred to as, the “Excise Tax”), then 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 Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes, Executive retains from the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b) Subject to the provisions of Section 14(c), all determinations required to be made under this Section 14, including the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, shall be made by Company’s independent auditors or such other accounting firm agreed by the Parties hereto (the “Accounting Firm”), which shall provide detailed supporting calculations to Company within 15 business days after the receipt of notice from Company that Executive has received a Payment, or such earlier time as is requested by Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 14(b), shall be paid to Executive (or for the benefit of the Executive to the extent of Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon Company and Executive. As a result of the uncertainly 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 Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (ai) Anything in this Agreement to the contrary notwithstanding, in the event If it shall be is determined that any paymentamount, award, right or benefit paid or distribution payable (including, without limitation, or otherwise provided or to be provided) to the acceleration of any payment, award, distribution or benefit), Executive by the Company or any of its subsidiaries to or for the benefit of Executive (whether pursuant to the terms of affiliates under this Agreement or otherwiseany other plan, but determined without regard to any additional payments required program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 14) 10(d), (a collectively, the “PaymentPayments”) ), would be constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax lawCode, or any interest or penalties are incurred by Executive with respect as amended from time to such excise tax time (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that that, after payment by the Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains from an amount of the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (biii) Subject to the provisions of Section 14(c), all All determinations required to be made under this Section 1410(d), including the determination of whether and when a Gross-Up Payment or a Reduction is required and of required, the amount of any such Gross-Up PaymentPayment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by Company’s independent auditors or such other an independent, nationally recognized accounting firm agreed by mutually acceptable to the Parties hereto Company and the Executive (the “Accounting FirmAuditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company within 15 business days after the receipt of notice from Company that and Executive has received a Payment, or such earlier time as is requested by Company, provided that following any determination that an Excise Tax a Reduction or Gross-Up Payment is payable by Executive necessary. All fees and expenses of the Auditor shall be made on paid by the basis of substantial authorityCompany. Company will promptly provide copies of such supporting calculations to Executive. The Initial Any Gross-Up Payment, if any, as determined pursuant to this Section 14(b10(d), shall be paid by the Company to Executive (or for the benefit of the Executive to the extent within five (5) days of Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting FirmAuditor’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination All determinations made by the Accounting Firm meeting the requirements of this Section 14(b) Auditor shall be binding upon the Company and the Executive. As a result of ; provided that if, notwithstanding the uncertainly in the application of Section 4999 of the Code at the time of the Auditor’s initial determination by the Accounting Firm hereunderdetermination, it is possible that Gross-Up Payments which will not have been made by Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date other applicable taxing authority) determines that any payment of taxes an additional Excise Tax is due with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determinationPayments, then such advance the Auditor shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, recalculate the amount of the Gross-Up Payment required or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to be paidthe Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Payment.

Excise Tax. (ai) Anything in this Agreement to the contrary notwithstanding, in the event if it shall be determined that any payment, award, benefit payment or distribution (including, without limitation, to the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries to Executive or for the Executive’s benefit of Executive (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 14) otherwise (a the “Payment”) would be subject to the excise tax imposed by Section section 4999 of the Code or any corresponding provisions of state or local tax law, or any interest or penalties are incurred by Executive with respect to such excise tax successor provision (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, the “Excise Tax”), then the Executive shall be entitled to receive from the Company an additional payment (a the “Gross-Up Payment”) in an amount such that after payment by Executive the net amount of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Payment and the Gross-Up Payment retained by the Executive after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the payment and all federal, Executive retains from state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment an amount provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and Payment; (ii) Notwithstanding any provision of this Agreement to the Excise Taxcontrary, but giving effect to any redetermination of the amount of Gross-Up payments otherwise required by this Section 5(f), if any, that but for this sentence the Company would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior be obligated to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of make a Gross-Up Payment under this Section 14(a) shall not be conditioned upon to the Executive’s termination of employment. Notwithstanding , and the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion aggregate “present value” of the Payments that would be treated as “parachute payments” to be paid or provided to the Executive under Section 2800 of the Code this Agreement or otherwise does not exceed 1.10 multiplied by three times the Safe Harbor Amount (as defined in Executive’s “base amount,” then the following sentence) by more than $100,000, then no Gross-up Payment shall payments and benefits to be made to Executive and the amounts payable paid or provided under this Agreement shall will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that the Payments, in the aggregate, are reduced no portion of any payment or benefit to the Safe Harbor Amount. The Executive, as so reduced or repaid, constitutes an “Safe Harbor Amountexcess parachute payment.” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code that could be paid to Executive without giving rise to any Excise TaxCode. The determination of whether any reduction in or repayment of the amounts payable hereunder, if applicable, shall such payments or benefits to be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (and no other Payments) shall as defined in Section 5(f)(iii)). Appropriate adjustments will be reducedmade to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than the amount previously determined to be due. If a Payment intended to be provided under the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments is required to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (biii) Subject to the provisions of Section 14(c), all All determinations required to be made under this Section 145, including whether and when the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, shall be made by Company’s independent auditors or such other accounting firm agreed in good faith by the Parties hereto Accountants (the “Accounting Firm”as defined below), which shall provide the Executive and the Company with detailed supporting calculations with respect to Company such Gross-Up Payment within 15 fifteen (15) business days after of the receipt of notice from the Executive or the Company that Executive has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such earlier time as is requested by Company, provided that any determination that an “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is payable by Executive shall be made on applicable and determining the basis amount of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial the Gross-Up Payment, if any, as determined pursuant to this Section 14(b), shall be paid to Executive (or for the benefit of the Executive A) to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of Company’s withholding obligation with respect to applicable taxes) no later than the later of Code may be relied upon and (iC) the due date Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the payment of any Excise Tax; and (ii) calendar year in which the receipt Gross-Up Payment is to be made, net of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax return and, as a result, Company is not required purposes at least equal to withhold Excise Tax from payments to those disallowed because of the inclusion of the Gross-Up Payment in the Executive. Company will promptly provide a copy of any such opinion to Executive’s adjusted gross income. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) Accountants shall be binding upon the Company and the Executive. As a result of the uncertainly uncertainty in the application of Section section 4999 of the Code at the time of the initial determination by the Accounting Firm Accountants hereunder, it is possible that the Gross-Up Payments which Payment made will not have been made by an amount less than the Company should have been made paid pursuant to this Section 5(f) (the “Underpayment”), consistent with . If the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c5(f) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by the Company to the Executive or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claimhis benefit; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (ai) Anything in this Agreement to the contrary notwithstanding, in the event If it shall be is determined that any paymentamount, award, right or benefit paid or distribution payable (including, without limitation, or otherwise provided or to be provided) to the acceleration of any payment, award, distribution or benefit), Executive by the Company or any of its subsidiaries to or for the benefit of Executive (whether pursuant to the terms of affiliates under this Agreement or otherwiseany other plan, but determined without regard to any additional payments required program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 14) 10(d), (a “Payment”) collectively, the "PAYMENTS"), would be constitute an "excess parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended ("CODE"), subject to the excise tax imposed by Section 4999 of the Code Code, as amended from time to time (the "EXCISE TAX"), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or any corresponding provisions less than 110% of state or local tax law, or any interest or penalties are incurred by the threshold at which such amount becomes an "excess parachute payment," then the amount of the Payments payable to the Executive with respect under this Agreement shall be reduced (a "REDUCTION") to the extent necessary so that no portion of such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred Payments payable to as, the “Executive is subject to the Excise Tax”), . (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an "excess parachute payment," then the Executive shall be entitled to receive an additional payment from the Company (a “Gross"GROSS-Up Payment”UP PAYMENT") in an amount such that that, after payment by the Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains from an amount of the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (biii) Subject to the provisions of Section 14(c), all All determinations required to be made under this Section 1410(d), including the determination of whether and when a Gross-Up Payment or a Reduction is required and of required, the amount of any such Gross-Up PaymentPayment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by Company’s independent auditors or such other an independent, nationally recognized accounting firm agreed by mutually acceptable to the Parties hereto Company and the Executive (the “Accounting Firm”"AUDITOR"); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company within 15 business days after the receipt of notice from Company that and Executive has received a Payment, or such earlier time as is requested by Company, provided that following any determination that an Excise Tax a Reduction or Gross-Up Payment is payable by Executive necessary. All fees and expenses of the Auditor shall be made on paid by the basis of substantial authorityCompany. Company will promptly provide copies of such supporting calculations to Executive. The Initial Any Gross-Up Payment, if any, as determined pursuant to this Section 14(b10(d), shall be paid by the Company to Executive (or for the benefit of the Executive to the extent within five (5) days of Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s Auditor's determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination All determinations made by the Accounting Firm meeting the requirements of this Section 14(b) Auditor shall be binding upon the Company and the Executive. As a result of ; provided that if, notwithstanding the uncertainly in the application of Section 4999 of the Code at the time of the Auditor's initial determination by the Accounting Firm hereunderdetermination, it is possible that Gross-Up Payments which will not have been made by Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date other applicable taxing authority) determines that any payment of taxes an additional Excise Tax is due with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determinationPayments, then such advance the Auditor shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, recalculate the amount of the Gross-Up Payment required or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the "RECALCULATED AMOUNT") and the Company shall pay to be paidthe Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor's recalculation the Gross-Up Payment.

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in the event if it shall be determined that any payment, award, benefit payment or distribution (including, without limitation, to the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries to Employee or for the Employee’s benefit of Executive (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 14) otherwise (a the “Payment”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any corresponding provisions of state or local tax law, 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, are hereinafter collectively referred to as, the “Excise Tax”), then Executive the Employee shall be entitled to receive from Choice an additional payment (a the “Gross-Up Payment”) in an amount such that after payment by Executive the net amount of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Payment and the Gross-Up Payment retained by the Employee after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the Payment and all federal, Executive retains from state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Paymentsprovided for in this Section, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken taking into account in any lost or reduced tax deductions on account of the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that shall be equal to the portion Payment; (b) All determinations required to be made under this Section, including whether and when the Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations shall be made by Accountants which Choice shall request provide the Employee and Choice with detailed supporting calculations with respect to such Gross-Up Payment at the time the Employee is entitled to receive the Payment. For the purposes of this Section, the “Accountants” shall mean Choice’s independent certified public accountants. All fees and expenses of the Accountants shall be borne solely by Choice. For the purposes of determining whether any of the Payments that would will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” under Section 2800 of within the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes meaning of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction Code, and all “parachute payments” in excess of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments “base amount” (as defined under Section 3. For purposes 280G(b)(3) of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other PaymentsCode) shall be reduced. If treated as subject to the reduction Excise Tax, unless and except to the extent that in the opinion of the amounts payable under this Agreement would Accountants such Payments (in whole or in part) either do not result in a reduction constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4) of the Payments Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax; for purposes of determining the Safe Harbor Amount, no amounts payable under this Agreement amount of the Gross-Up Payment the Employee shall be reduced pursuant deemed to this Section 14(a). (b) Subject to pay Federal income taxes at the provisions highest applicable marginal rate of Section 14(c), all determinations required to be made under this Section 14, including Federal income taxation for the determination of whether a calendar year in which the Gross-Up Payment is required to be made and to pay any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of any such the Employee’s adjusted gross income); and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment, shall be made by CompanyPayment in the Employee’s independent auditors or such other accounting firm agreed by the Parties hereto (the “Accounting Firm”), which shall provide detailed supporting calculations to Company within 15 business days after the receipt of notice from Company that Executive has received a Payment, or such earlier time as is requested by Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authorityadjusted gross income. Company will promptly provide copies of such supporting calculations to Executive. The Initial Any Gross-Up Payment, if any, as determined pursuant Payment with respect to this Section 14(b), any Payment shall be paid by Choice at the time the Employee is entitled to Executive (or for receive the benefit of the Executive to the extent of Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to ExecutivePayment. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) Accountants shall be binding upon Company Choice and Executivethe Employee. As a result of the uncertainly uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm Accountants hereunder, it is possible that the Gross-Up Payments which Payment made will not have been made by Company an amount less than Choice should have been made paid pursuant to this Section (the “Underpayment”’), consistent with the calculations required to be made hereunder. In the event that Company Choice exhausts its remedies pursuant to Section 14(c) and Executive thereafter the Employee is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company Choice to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by CompanyEmployee’s benefit. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any payment, award, benefit or distribution (includingor combination thereof) by the Company, without limitationany of the Company’s affiliates, one or more trusts established by the acceleration Company for the benefit of its employees, or any paymentother person or entity, award, distribution or benefit), by Company or its subsidiaries to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, or otherwiseotherwise pursuant to or by reason of any other agreement, but determined policy, plan, program or arrangement, including without regard to limitation any additional payments required under this Section 14stock option, stock appreciation right, phantom equity awards or similar right, or the lapse or termination of any restriction on the vesting or exercisability of any of the foregoing) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any corresponding provisions of state or local tax law, successor provision thereto) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment or payments (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and 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, the Executive retains from an amount of the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b) Subject to the provisions of Section 14(c)15(a) hereof, all determinations required to be made under this Section 1415, including the determination of whether and when a Gross-Up Payment is required and of the amount of any such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by Company’s independent auditors or such other a nationally recognized certified public accounting firm agreed as may be designated by the Parties hereto Company, and reasonably satisfactory to the Executive (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within 15 fifteen (15) business days after of the receipt closing of notice from Company that Executive has received a Paymentthe change in ownership or control of the Company, or such earlier time as is requested by the Company, provided that any determination that an Excise Tax is payable by Executive . All fees and expenses of the Accounting Firm shall be made on borne solely by the basis of substantial authorityCompany. Company will promptly provide copies of such supporting calculations to Executive. The Initial Any Gross-Up Payment, if any, as determined pursuant to this Section 14(b)15, shall be paid by the Company to the Executive (or for to the benefit of appropriate taxing authority on the Executive’s behalf) when due immediately prior to the date the Executive is required to the extent of Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the make payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determinationTax or other taxes. If the Accounting firm Firm determines that no Excise Tax is payable by the Executive, it shall furnish Company with a written opinion that substantial authority exists for so indicate to the Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executivein writing. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon the Company and Executivethe Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce the Company’s obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. As a result of the uncertainly uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding state or local tax law at the time of the initial any determination by the Accounting Firm hereunder, it is possible that the amount of the Gross-Up Payments which will not have been made Payment determined by Company should have been made the Accounting Firm to be due to (or on behalf of) the Executive is lower than the amount actually due (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 14(c15(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, Underpayment that has occurred as promptly as possible and notify the Company and the Executive of such calculations, and any such Underpayment (including the Gross-Up Payment to the Executive) shall be promptly paid by the Company to or for the benefit of Executive. The fees the Executive within five (5) business days after receipt of such determination and disbursements of the Accounting Firm shall be paid by Companycalculations. (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a any Gross-Up Payment. Such notification shall be given as soon as practicable but not no later than ten (10) business days after the Executive receives written notice 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 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 he 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: shall (i) give the Company any information which is in the Executive’s possession 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 , and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however however, that the Company shall bear and pay directly all costs and expenses (including 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, Tax or income tax or employment tax, (including interest and penalties with respect thereto, ) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c15(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 s▇▇▇ 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, howeverfurther, that if the Company directs the Executive to pay such claim and s▇▇▇ for a refund, the Company shall advance pay the amount of such payment claim to Executive on an interest-free basis the Executive, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax, Tax or income tax or employment tax, (including interest or penalties with respect thereto, ) imposed with respect to such advance payment or with respect to any imputed income with respect to such payment (except including the applicable Gross-Up Payment); provided, further, that if such a loan would not be permitted under applicable law, Company may not direct the Executive is required to pay the claim and s▇▇ for a refund); and further provided that any extension of extend the statute of limitations relating to enable the payment of taxes for Company to contest such claim, the taxable year of Executive with respect to which such contested amount is claimed to be due is limited may limit this extension solely to such contested amount. Furthermore, The Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. The reimbursement of expenses incurred by the Executive due to a tax contest or litigation addressing the existence or amount of an Excise Tax liability shall be reimbursed promptly, but in no event be made later than the end of the calendar year next following the calendar year in which the taxes that are subject of the contest or litigation are remitted to the taxing authority (or if no taxes are remitted as a result of such audit or litigation, the end of the calendar year next following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation). In addition, without extending the time of any obligation in this Section 15, any tax Gross-Up Payment shall be made no later than the end of the calendar year next following the calendar year in which the Executive remits the related tax. (d) If, after the receipt by the Executive of an amount advanced paid by the Company pursuant to this Section 14(c)15, the Executive becomes entitled to receive any refund with respect to such claima Gross-Up Payment, the Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay to the Company the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). IfNotwithstanding the foregoing, after in the receipt event that the obligation to refund any amount shall be a violation of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, such obligation to refund shall be null and void. (e) To the extent that the applicable regulations under Code Section 280G permits a later recalculation by Executive the Company, or requires a later recalculation, of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior whether the Payments are subject to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereofExcise Tax, the amount provisions of the Gross-Up Payment required to this Section 15 shall again be paidapplied based upon such recalculation.

Excise Tax. (a) Anything in In the event that the Executive shall become entitled to payments and/or benefits provided by this Agreement to the contrary notwithstanding, or any other amounts in the event it shall be determined that any payment, award, benefit or distribution (including, without limitation, the acceleration “nature of any payment, award, distribution or benefit), by Company or its subsidiaries to or for the benefit of Executive compensation” (whether pursuant to the terms of this Agreement or otherwiseany other plan, but determined without regard to arrangement or agreement with the Company, any additional payments required under this person whose actions result in a change of ownership or effective control covered by Section 14280G(b)(2) of the Internal Revenue Code of 1986, as amended (a “PaymentCode”) would or any person affiliated with the Company or such person) as a result of a Change in Control (collectively the “Company Payments”), and if such Company Payments will be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code or (and any corresponding provisions of state or local similar tax law, or that may hereafter be imposed by any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to astaxing authority), the “Excise Tax”), then Company shall pay to the Executive shall be entitled to receive at the time specified in Section 5(e) hereof an additional payment amount (a the “Gross-Up Payment”) in an amount such that the net amount retained by the Executive, after payment by Executive deduction of all taxes (including any Excise TaxTax on the Company Payments and any U.S. federal, state, and local income or payroll tax or employment tax) imposed upon the Gross-Up Payment provided for by this Section 5(a), but before deduction for any U.S. federal, state, and any interest local income or penalties imposed with respect to such taxespayroll tax on the Company Payments, Executive retains from the Gross-Up Payment an amount shall be equal to the excess, if any, of Company Payments. (ib) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 145(a) to the contrary, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but the Company Payments do not exceed 110% of the greatest amount (the “Reduced Amount”) that could be paid to the Executive such that the portion receipt of the Company Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive and the Company Payments, in the aggregate, shall be reduced to an amount that is one dollar ($1) less than the Reduced Amount; provided, however, that the reduction shall occur only if the reduced Company Payments received by the Executive (after taking into account further reductions for applicable federal, state and local income, social security and other taxes) would be greater than the unreduced Company Payments to be received by the Executive minus (i) the Excise Tax payable with respect to such Company Payments and (ii) all applicable federal, state and local income, social security and other taxes on such Company Payments. If the Reduced Amount is to be effective, the Company Payments shall be reduced in the following order: (A) any cash severance based on a multiple of annual base salary or bonus, (B) any other cash amounts payable to the Executive, (C) any benefits valued as “parachute payments,” (D) acceleration of vesting of any stock option or similar awards for which the exercise price exceeds the then fair market value, and (E) acceleration of vesting of any equity not covered by clause (D) above. In the event that the Internal Revenue Service or court ultimately makes a determination that the “excess parachute payments” plus the “base amount” is an amount other than as determined initially, an appropriate adjustment shall be made with regard to the Gross-Up Payment or Reduced Amount, as applicable, to reflect the final determination and the resulting impact on whether this Section 5(b) applies. (c) For purposes of determining whether any of the Company Payments will be subject to the Excise Tax and the amount of such Excise Tax, (x) the Company Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 2800 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of the Company’s independent certified public accountants appointed prior to any change in ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel selected by such accountants (the “Accountants”) such Company Payments (in whole or in part) either do not constitute “parachute payments,” including giving effect to the recalculation of stock options in accordance with Treasury Regulation Section 1.280G-1 Q/A33, represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code does in excess of the “base amount” or are otherwise not exceed subject to the Safe Harbor Amount Excise Tax, and (as defined in y) the following sentence) by more than $100,000, then no Grossvalue of any non-up Payment cash benefits or any deferred payment or benefit shall be made to Executive and determined by the amounts payable under this Agreement shall be reduced so that Accountants in accordance with the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes principles of Section 280G of the Code that could be paid to Executive without giving rise to any Excise TaxCode. The reduction of the amounts payable hereunder, if applicable, All determinations hereunder shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b) Subject to the provisions of Section 14(c), all determinations required to be made under this Section 14, including the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, shall be made by Company’s independent auditors or such other accounting firm agreed by the Parties hereto (the “Accounting Firm”), Accountants which shall provide detailed supporting calculations both to the Company within 15 business days after and the receipt of notice from Company that Executive has received a Payment, or at such earlier time as it is requested by Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to or the Executive. The Initial determination of the Accountants, subject to the adjustments provided below, shall be final and binding upon the Company and the Executive. (d) For purposes of determining the amount of the Gross-Up Payment, if anythe Executive’s marginal blended actual rates of federal, as determined pursuant to this Section 14(b), shall be paid to Executive (state and local income taxation in the calendar year in which the change in ownership or for the benefit of effective control that subjects the Executive to the extent of Company’s withholding obligation with respect to applicable taxes) no later than Excise Tax occurs shall be used. In the later of (i) event that the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable subsequently determined by the Accountants to be less than the amount taken into account hereunder at the time the Gross-Up Payment is made, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the prior Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and U.S. federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax or a U.S. federal, state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event that any portion of the Gross-Up Payment to be refunded to the Company has been paid to any U.S. federal, state and local tax authority, repayment thereof (and related amounts) shall not be required until actual refund or credit of such portion has been made to the Executive, and interest payable to the Company shall not exceed the interest received or credited to the Executive by such tax authority for the period it held such portion. The Executive and the Company shall furnish Company with a written opinion mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if the Executive’s claim for refund or credit is denied. In the event that substantial authority exists for Executive not to report any the Excise Tax on his Federal income tax return and, as a result, Company is not required later determined by the Accountants or the Internal Revenue Service (or other taxing authority) to withhold Excise Tax from payments to Executive. Company will promptly provide a copy exceed the amount taken into account hereunder at the time the Gross-Up Payment is made (including by reason of any such opinion to Executive. Any determination by payment the Accounting Firm meeting the requirements existence or amount of this Section 14(b) shall which cannot be binding upon Company and Executive. As a result of the uncertainly in the application of Section 4999 of the Code determined 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 Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification ), the Company shall be given as soon as practicable but not later than ten business days after Executive receives written notice make an additional Gross-Up Payment in respect of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company excess (plus any interest or such shorter period ending on the date that any payment of taxes penalties payable with respect to such claim excess) promptly after the amount of such excess is due). If Company notifies finally determined. (e) The Gross-Up Payment or portion thereof provided for in Section 5(d) above shall be paid not later than the sixtieth (60th) day following an event occurring which subjects the Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would or portion thereof cannot be payable hereunder and finally determined on or before such day, the Company shall pay to the Executive shall be entitled to settle or conteston such day an estimate, as determined in good faith by the case may beAccountants, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to Section 5(d) above, as soon as the amount thereof can reasonably be determined, but in no event later than the ninetieth (90th) day after the occurrence of the event subjecting the Executive to the Excise Tax. Subject to Sections 5(d) and 5(i), in the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (f) In the event of any other issue raised by controversy with the Internal Revenue Service (or any other taxing authority) with regard to the Excise Tax, the Executive shall permit the Company to control issues related to the Excise Tax (at its expense), provided that such issues do not potentially materially adversely affect the Executive, but the Executive shall control any other issues. In the event the issues are interrelated, the Executive and the Company shall in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree the Executive shall make the final determination with regard to the issues. In the event of any conference with any taxing authority as to the Excise Tax or associated income taxes, the Executive shall permit the representative of the Company to accompany the Executive, and the Executive and the Executive’s representative shall cooperate with the Company and its representative. (dg) If, after The Company shall be responsible for all charges of the receipt by Executive of an amount advanced by Accountants. (h) The Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, and the Executive shall (subject promptly deliver to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount each other copies of such refund (together any written communications, and summaries of any verbal communications, with any interest paid or credited thereon after taxes applicable thereto). If, after taxing authority regarding the receipt by Executive Excise Tax. (i) Nothing in this Section 5 is intended to violate the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim 2002 and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereofthat any advance or repayment obligation hereunder would do so, such obligation shall be modified so as to make the advance a nonrefundable payment to the Executive and the repayment obligation null and void. (j) The provisions of this Section 5 shall survive the Executive’s Termination of Employment for any reason and any amount payable under this Section 5 shall be subject to the provisions of the Gross-Up Payment required to be paidSection 21(b).

Excise Tax. (ai) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any payment, award, benefit payments or distribution (including, without limitation, the acceleration of any payment, award, distribution benefits provided or benefit), to be provided by Company or its subsidiaries Bank or their respective Affiliates to Executive or for the Executive’s benefit of Executive (whether pursuant to the terms of this Agreement or otherwiseotherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code (or any successor provision thereto) and would, but determined without regard to any additional payments required under for this Section 14) (a “Payment”) would 24(b), be subject to the excise tax imposed by Section 4999 of the Code (or any corresponding provisions of successor provision thereto) or any similar tax imposed by state or local tax law, law or any interest or penalties are incurred by Executive with respect to such excise tax taxes (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to ascollectively, the “Excise Tax”), then Executive shall be entitled prior to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including any Excise Taxmaking the Covered Payments the Parties will, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes, Executive retains from the Gross-Up Payment an amount equal to the excessextent practicable and reasonable, if any, of (i) the Excise Tax imposed upon the Payments, take such action and (ii) the Excise Tax, if any, execute such documents as may be necessary to ensure that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion none of the Covered Payments that would be treated as will constitute “parachute payments” under Section 2800 of within the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes meaning of Section 280G of the Code (or any successor provision thereto), and in the event (but only in the event) it is not practicable and reasonable to take such action and execute such documents or it is not reasonably possible to ensure that could none of the Covered Payments will constitute “parachute payments” within the meaning of Section 280G of the Code (or any successor provision thereto), then a calculation shall be paid made comparing (A) the Net Benefit (as defined below) to Executive without giving rise of the Covered Payments after payment of the Excise Tax to any (B) the Net Benefit to Executive if the Covered Payments are reduced to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under clause (A) above is less than the amount calculated under clause (B) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax. The reduction term “Net Benefit” shall mean the present value of the amounts payable hereunderCovered Payments net of all federal, if applicablestate, shall be local, foreign income, employment, and excise taxes. Any reduction made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b24(b) Subject to the provisions of Section 14(c), all determinations required to be made under this Section 14, including the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, shall be made in a manner determined by Company’s independent auditors or such other accounting firm agreed by the Parties hereto (the “Accounting Firm”), which shall provide detailed supporting calculations to Company within 15 business days after the receipt of notice from Company Employer that Executive has received a Payment, or such earlier time as is requested by Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 14(b), shall be paid to Executive (or for the benefit of the Executive to the extent of Company’s withholding obligation consistent with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon Company and Executive. As a result 409A of the uncertainly 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 Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by CompanyCode. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any payment, awardbenefit, benefit or distribution (including, without limitation, by the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries Firm to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 14paragraph) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any corresponding provisions of state or local tax law, 1986 (the “Code”) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains from an amount of the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b) Subject to the provisions of Section 14(c), all All determinations required to be made under this Section 14paragraph, including the determination of whether and when a Gross-Up Payment is required and of the amount of any such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by Company’s independent auditors Deloitte & Touche LLP or such other certified public accounting firm agreed reasonably acceptable to the Firm as may be designated by the Parties hereto Executive (the “Accounting Firm”), ) which shall provide detailed supporting calculations both to Company Lazard and the Executive within 15 business days after of the receipt of notice from Company the Executive that Executive there has received been a Payment, or such earlier time as is requested by Company, provided that any determination that an Excise Tax is payable by Executive Lazard. All fees and expenses of the Accounting Firm shall be made on the basis of substantial authorityborne solely by Lazard. Company will promptly provide copies of such supporting calculations to Executive. The Initial Any Gross-Up Payment, if any, as determined pursuant to this Section 14(b), Payment shall be paid by Lazard to Executive (or for the benefit of the Executive to the extent within five days of Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; , and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon Company Lazard and the Executive. As a result of the uncertainly 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 Company Lazard should have been made (“Underpayment”) or that Gross-Up Payments which were made by Lazard should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) there occurs an Underpayment and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, Underpayment that has occurred and any such Underpayment shall be promptly paid by Company Lazard to or for the benefit of the Executive. The fees and disbursements of In the Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim event that there occurs an Overpayment and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claimthe Excise Tax, the Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company to Lazard the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any payment, awardbenefit, benefit or distribution (including, without limitation, by the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries Firm to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement (including, without limitation, this Schedule I) or otherwise, but determined without regard to any additional payments required under this Section 14paragraph) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (or any corresponding provisions similar provision of state state, local or local tax foreign law, ) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, but excluding any income taxes and penalties imposed pursuant to Section 409A of the Code, the Executive retains from an amount of the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Firm’s obligation to make Gross-Up Payment Payments under this Section 14(a) paragraph 5 shall not be conditioned upon the Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b) Subject to the provisions of Section 14(c), all All determinations required to be made under this Section 14paragraph, including the determination of whether and when a Gross-Up Payment is required and of the amount of any such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by Company’s independent auditors Deloitte & Touche LLP or such other certified public accounting firm agreed reasonably acceptable to the Firm as may be designated by the Parties hereto Executive (the “Accounting Firm”), which shall provide detailed supporting calculations both to Company Lazard and the Executive within 15 fifteen (15) business days after the receipt of notice from Company the Executive that Executive there has received been a Payment, or such earlier time as is requested by Company, provided that any determination that an Excise Tax is payable by Executive Lazard. All fees and expenses of the Accounting Firm shall be made on borne solely by the basis of substantial authorityFirm. Company will promptly provide copies of such supporting calculations to Executive. The Initial Any Gross-Up Payment, if any, as determined pursuant to this Section 14(b), Payment shall be paid by the Firm to Executive (or for the benefit of the Executive to the extent of Company’s withholding obligation with respect to applicable taxes) no later than within five days after the later of (i) the due date for the payment of any Excise Tax; , and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall shall, absent manifest error, be binding upon Company the Firm and the Executive. As a result of the uncertainly uncertainty in the application of Section Sections 4999 and 280G 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 should have been made by Company the Firm but were not made (“Underpayment”) or that Gross-Up Payments which were made by the Firm should not have been made (“UnderpaymentOverpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) there occurs an Underpayment and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, Underpayment that has occurred and any such Underpayment shall be promptly paid by Company the Firm to or for the benefit of the Executive. The fees and disbursements of In the Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim event that there occurs an Overpayment and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claimthe Excise Tax, the Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company to the Firm the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). IfAny Gross-Up Payment (including any Underpayment), after the receipt by Executive of an amount advanced by Company as determined pursuant to Section 14(c)this paragraph 5, a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior paid by the Firm to the expiration of 30 days after such determinationExecutive as provided above; provided that, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required shall in all events be paid no later than the end of the Executive’s taxable year next following the Executive’s taxable year in which the Excise Tax (and any income or other related taxes or interest or penalties thereon) on a Payment is remitted to be paidthe Internal Revenue Service or any other applicable taxing authority or, in the case of amounts relating to a claim from the Internal Revenue Service or another tax authority that does not result in the remittance of any federal, state, local and foreign income, excise, social security and other taxes, the calendar year in which the claim is finally settled or otherwise resolved. Notwithstanding any other provision of this paragraph 5, the Firm may, in its sole discretion, to comply with any tax withholding requirements, withhold and pay over to the Internal Revenue Service or any other applicable taxing authority, for the benefit of the Executive, all or any portion of any Gross-Up Payment, and the Executive hereby consents to such withholding.

Excise Tax. (a) Anything The Executive is, or, if applicable, the Executive’s dependents, heirs or beneficiaries are, responsible for covering any excise taxes incurred by the Executive pursuant to Section 4999 (and any successor provision) of the Code with respect to any payments received by the Executive upon termination in connection with a Change in Control, and the Company has no responsibility for such excise taxes, or any gross up related thereto. (b) Notwithstanding any other provisions of this Agreement to the contrary notwithstandingcontrary, in the event it shall be determined that any payment, award, benefit payments or distribution benefits received or to be received by the Executive in connection with the Executive’s employment with the Company (including, without limitation, the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries to or for the benefit of Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 14) (a “Payment”termination thereof) would be subject the Executive to the excise tax imposed by under Section 4999 of the Code or any corresponding provisions of state or local tax law, 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, are hereinafter collectively referred to as, the “Excise Tax”), then Executive shall be entitled to receive an additional payment and if the net-after tax amount (a “Gross-Up Payment”) in an amount such that after payment taking into account all applicable taxes payable by Executive of all taxes (the Executive, including any Excise Tax, income tax or employment tax) imposed upon that the Gross-Up Payment and any interest or penalties imposed Executive would receive with respect to such taxes, payments or benefits does not exceed the net-after tax amount the Executive retains from would receive if the Gross-Up Payment an amount equal of such payments and benefits were reduced to the excessmaximum amount which could otherwise be payable to the Executive without the imposition of the Excise Tax, if anythen, to the extent necessary to eliminate the imposition of the Excise Tax, (i) the Excise Tax imposed upon the Paymentssuch cash payments and benefits shall first be reduced (if necessary, to zero) and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a all other non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation)cash payments and benefits shall next be reduced. The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the Cash amounts payable under this Agreement latest in time shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b) Subject to the provisions of Section 14(c), all determinations required to be made under this Section 14, including the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, shall be made by Company’s independent auditors or such other accounting firm agreed by the Parties hereto (the “Accounting Firm”), which shall provide detailed supporting calculations to Company within 15 business days after the receipt of notice from Company that Executive has received a Payment, or such earlier time as is requested by Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 14(b), shall be paid to Executive (or for the benefit of the Executive first to the extent that such reduction results in a greater level of Company’s withholding obligation with respect aggregate value to applicable taxes) no later than become payable to the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) and no payment shall be binding upon Company and Executive. As a result altered in violation of the uncertainly in the application of Code 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 Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by Company.409A. (c) The determination by the Company of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is required pursuant to the preceding sentence will be confirmed at the expense of the Company by independent accountants or compensation or benefits consultants selected by the Company, and the Executive shall notify Company in writing of any claim have the right to review such determination. The fact that the Executive’s right to payments or benefits may be reduced by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company reason of the nature limitations contained in this Section 6 will not of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration itself limit or otherwise affect any other rights of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company than pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paidthis Agreement.

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in a. In the event it shall be determined that any payment, award, benefit payments or distribution (including, without limitation, the acceleration of any payment, award, distribution benefits provided or benefit), to be provided by Company or its subsidiaries Bank or their respective Affiliates to Executive or for the Executive’s benefit of Executive (whether pursuant to the terms of this Agreement or otherwiseotherwise (“Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code (or any successor provision thereto) and would, but determined without regard to any additional payments required under for this Section 14) (a “Payment”) would 24(b), be subject to the excise tax imposed by Section 4999 of the Code (or any corresponding provisions of successor provision thereto) or any similar tax imposed by state or local tax law, law or any interest or penalties are incurred by Executive with respect to such excise tax taxes (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to ascollectively, the “Excise Tax”), then Executive shall be entitled prior to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including any Excise Taxmaking the Covered Payments the Parties will, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes, Executive retains from the Gross-Up Payment an amount equal to the excessextent practicable and reasonable, if any, of (i) the Excise Tax imposed upon the Payments, take such action and (ii) the Excise Tax, if any, execute such documents as may be necessary to ensure that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion none of the Covered Payments that would be treated as will constitute “parachute payments” under Section 2800 of within the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes meaning of Section 280G of the Code (or any successor provision thereto), and in the event (but only in the event) it is not practicable and reasonable to take such action and execute such documents or it is not reasonably possible to ensure that could none of the Covered Payments will constitute “parachute payments” within the meaning of Section 280G of the Code (or any successor provision thereto), then a calculation shall be paid made comparing (A) the Net Benefit (as defined below) to Executive without giving rise of the Covered Payments after payment of the Excise Tax to any (B) the Net Benefit to Executive if the Covered Payments are reduced to the minimum extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under clause (A) above is less than the amount calculated under clause (B) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax. The reduction term “Net Benefit” shall mean the present value of the amounts payable hereunderCovered Payments net of all federal, if applicablestate, shall be local, foreign income, employment, and excise taxes. Any reduction made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b24(b) Subject to the provisions of Section 14(c), all determinations required to be made under this Section 14, including the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, shall be made in a manner determined by Company’s independent auditors or such other accounting firm agreed by the Parties hereto (the “Accounting Firm”), which shall provide detailed supporting calculations to Company within 15 business days after the receipt of notice from Company Employer that Executive has received a Payment, or such earlier time as is requested by Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 14(b), shall be paid to Executive (or for the benefit of the Executive to the extent of Company’s withholding obligation consistent with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon Company and Executive. As a result 409A of the uncertainly 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 Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by CompanyCode. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in the event if it shall be determined that any payment, award, benefit payment or distribution (including, without limitation, to the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries to Employee or for the Employee's benefit of Executive (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 14) otherwise (a “the "Payment”") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any corresponding provisions of state or local tax law, 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, are hereinafter collectively referred to as, the “"Excise Tax”"), then Executive the Employee shall be entitled to receive from Choice an additional payment (a “the "Gross-Up Payment”") in an amount such that after payment by Executive the net amount of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Payment and the Gross-Up Payment retained by the Employee after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the Payment and all federal, Executive retains from state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Paymentsprovided for in this Section, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken taking into account in any lost or reduced tax deductions on account of the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced equal to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a).Payment; (b) Subject to the provisions of Section 14(c), all All determinations required to be made under this Section 14Section, including whether and when the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations shall be made by Company’s independent auditors or such other accounting firm agreed by Accountants which Choice shall request provide the Parties hereto (the “Accounting Firm”), which shall provide Employee and Choice with detailed supporting calculations with respect to Company within 15 business days after the receipt of notice from Company that Executive has received a Payment, or such earlier time as is requested by Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment at the time the Employee is entitled to receive the Payment. For the purposes of this Section, the "Accountants" shall mean Choice's independent certified public accountants. All fees and expenses of the Accountants shall be borne solely by Choice. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as "parachute payments" within the meaning of Section 280G of the Code, and all "parachute payments" in excess of the "base amount" (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute "parachute payments" or represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4) of the Code) in excess of the "base amount," or such "parachute payments" are otherwise not subject to such Excise Tax; for purposes of determining the amount of the Gross-Up Payment the Employee shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made and to pay any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if anypaid in such year (determined without regard to limitations on deductions based upon the amount of the Employee's adjusted gross income); and to have otherwise allowable deductions for Federal, as determined pursuant state and local income tax purposes at least equal to this Section 14(b), those disallowed because of the inclusion of the Gross-Up Payment in the Employee's adjusted gross income. Any Gross-Up Payment with respect to any Payment shall be paid by Choice at the time the Employee is entitled to Executive (or for receive the benefit of the Executive to the extent of Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to ExecutivePayment. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) Accountants shall be binding upon Company Choice and Executivethe Employee. As a result of the uncertainly uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm Accountants hereunder, it is possible that the Gross-Up Payments which Payment made will not have been made by Company an amount less than Choice should have been made paid pursuant to this Section (“the "Underpayment”'), consistent with the calculations required to be made hereunder. In the event that Company Choice exhausts its remedies pursuant to Section 14(c) and Executive thereafter the Employee is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company Choice to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by CompanyEmployee's benefit. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (a1) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any payment, award, benefit payment (other than the payment provided for in this Paragraph 13.(c)) or distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries type to or for the benefit of Executive Executive, by Company, any affiliate of Company, any person who acquires ownership or effective control of Company or ownership of a substantial portion of Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder) or any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise (the "Total Payments"), but determined without regard to any additional payments required under this Section 14) (a “Payment”) would is or will be subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax law, 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, are hereinafter collectively referred to as, as the “"Excise Tax”"), then 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 Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes), including any income tax, employment tax or Excise Tax, imposed upon the Gross-Up Payment, Executive retains from an amount of the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Total Payments, and . (ii2) the Excise Tax, if any, All determinations that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior are required to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment be made under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14Paragraph 13.(c), if it shall be determined that Executive is entitled to a Gross-Up Paymentincluding, but that the portion not limited to, determinations as to whether any of the Total Payments that would be treated as “are "parachute payments” under Section 2800 of " (within the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes meaning of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b) Subject to the provisions of Section 14(cCode), all determinations required to be made under this Section 14, including the determination of whether a Gross-Up Payment is required and of required, the amount of any such Gross-Up PaymentPayment and amounts relevant to the last sentence of this Paragraph 13.(c)(2), shall be made by Company’s an independent auditors or such other accounting firm agreed selected by Executive from among the Parties hereto four (4) largest accounting firms in the United States (the “"Accounting Firm”") (including, but not limited to, and without objection by Company and notwithstanding any potential or actual conflict of interest between Company and Executive, any such accounting firm which is then providing or has at any time in the past provided services to Company and/or any subsidiaries or affiliates of Company), which shall provide its determination (the "Determination"), together with detailed supporting calculations calculations, regarding the amount of any Gross-Up Payment and any other relevant matter, both to Company within 15 business and Executive by no later than ten (10) days after the receipt of notice from Company that Executive has received a Paymentdate Executive's employment is terminated, if applicable, or such earlier other time as is requested by Company, provided Company or by Executive if Executive reasonably believes that any determination there is a possibility that an Excise Tax is may be payable by Executive shall be made on the basis in respect of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 14(b), shall be paid to Executive (all or for the benefit any portion of the Executive to the extent of Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determinationTotal Payments. If the Accounting firm Firm determines that no Excise Tax is payable by Executive, it shall furnish Executive and Company with a written an opinion reasonably acceptable to Executive and Company that no Excise Tax is payable (including the reasons therefor) and that Executive has substantial authority exists for Executive not to report any Excise Tax on his Federal Executive's federal income tax return andreturn. If a Gross-Up Payment is determined to be payable, as a result, it shall be paid to Executive within twenty (20) days after the Determination (and all accompanying calculations and other material supporting the Determination) is delivered to Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executiveby the Accounting Firm. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon Company and Executive, absent manifest error. As a result of the uncertainly 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 Company should have been made (“"Underpayment”"), consistent with the calculations required to be or that Gross-Up Payments will have been made hereunderby Company which should not have been made ("Overpayments"). In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Taxeither such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Underpayment, if any, that has occurred and any the amount of such Underpayment (together with any interest and penalties payable by Executive as a result of such Underpayment) shall be promptly paid by Company to or for the benefit of Executive. In the case of an Overpayment, Executive shall, at the direction and expense of Company, take such steps as are reasonably necessary (including the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, Company, and otherwise reasonably cooperate with Company to correct such Overpayment. The fees and disbursements expenses of the Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any payment, award, benefit or distribution (includingor combination thereof) by ▇▇▇▇▇▇ US, without limitationany of its affiliates, one or more trusts established by ▇▇▇▇▇▇ US for the acceleration benefit of its employees, or any paymentother person or entity, award, distribution or benefit), by Company or its subsidiaries to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, or otherwiseotherwise pursuant to or by reason of any other agreement, but determined policy, plan, program or arrangement, including without regard to limitation any additional payments required under this Section 14stock option, stock appreciation right, phantom equity awards or similar right, or the lapse or termination of any restriction on the vesting or exercisability of any of the foregoing) (a “Payment”"PAYMENT") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "CODE") by reason of being "contingent on a change in ownership or control" of ▇▇▇▇▇▇ US, within Section 280G of the Code (or any corresponding provisions of state or local tax law, successor provision thereto) 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, are hereinafter collectively referred to as, as the “Excise Tax”"EXCISE TAX"), then Executive shall be entitled to receive an additional payment or payments (a “Gross"GROSS-Up Payment”UP PAYMENT") in an amount such that after payment by Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and 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 from an amount of the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b) Subject to the provisions of Section 14(c)4(a) hereof, all determinations required to be made under this Section 144, including the determination of whether and when a Gross-Up Payment is required and of the amount of any such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by Company’s independent auditors or such other a nationally recognized certified public accounting firm agreed as may be designated by the Parties hereto ▇▇▇▇▇▇ US, and reasonably satisfactory to Executive (the “Accounting Firm”"ACCOUNTING FIRM"), which shall provide detailed supporting calculations both to Company ▇▇▇▇▇▇ US and Executive within 15 fifteen (15) business days after the receipt of notice from Company that Executive has received a PaymentTermination Date, or such earlier time as is requested by Company, provided ▇▇▇▇▇▇ US; PROVIDED that for purposes of determining the amount of any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if anyExecutive 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 of Executive's residence or place of employment 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 ▇▇▇▇▇▇ US. Any Gross-Up Payment, as determined pursuant to this Section 14(b)4, shall be paid by ▇▇▇▇▇▇ US to Executive (or for the benefit of the Executive to the extent of Company’s withholding obligation with respect appropriate taxing authority on Executive's behalf) when due immediately prior to applicable taxes) no later than the later of (i) the due date for the Executive is required to make payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determinationTax or other taxes. If the Accounting firm Firm determines that no Excise Tax is payable by Executive, it shall furnish Company so indicate to Executive in writing, with a written an opinion that Executive has substantial authority exists for Executive not to report any Excise Tax on his Federal his/her federal state, local income or other tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executivereturn. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon Company ▇▇▇▇▇▇ US and Executivethe Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; PROVIDED, HOWEVER, that no such determination shall eliminate or reduce ▇▇▇▇▇▇ US's obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. As a result of the uncertainly uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding state or local tax law at the time of the initial any determination by the Accounting Firm hereunder, it is possible that the amount of the Gross-Up Payments which will not have been made Payment determined by Company should have been made (“Underpayment”), consistent with the calculations required Accounting Firm to be made hereunderdue to (or on behalf of) Executive was lower than the amount actually due ("UNDERPAYMENT"). In the event that Company ▇▇▇▇▇▇ US exhausts its remedies pursuant to Section 14(c4(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, Underpayment that has occurred as promptly as possible and notify ▇▇▇▇▇▇ US and Executive of such calculations, and any such Underpayment (including the Gross-Up Payment to Executive) shall be promptly paid by Company ▇▇▇▇▇▇ US to or for the benefit of Executive. The fees Executive within five (5) business days after receipt of such determination and disbursements of the Accounting Firm shall be paid by Companycalculations. (c) Executive shall notify Company ▇▇▇▇▇▇ US in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company ▇▇▇▇▇▇ US of a any Gross-Up Payment. Such notification shall be given as soon as practicable but not no later than ten (10) business days after Executive receives written notice is informed in writing of such claim and shall apprise Company ▇▇▇▇▇▇ US of the nature of such claim and the date on which such Claim 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 he gives such notice to Company ▇▇▇▇▇▇ US (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company ▇▇▇▇▇▇ US notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: shall (i) give Company ▇▇▇▇▇▇ US any information which is in Executive's possession reasonably requested by Company ▇▇▇▇▇▇ US relating to such claim; , (ii) take such action in connection with contesting such claim as Company ▇▇▇▇▇▇ US 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 Company; ▇▇▇▇▇▇ US, (iii) cooperate with Company ▇▇▇▇▇▇ US in good faith in order to effectively contest such claim; and , and (iv) permit Company ▇▇▇▇▇▇ US to participate in any proceedings relating to such claim; providedPROVIDED, however HOWEVER, that Company ▇▇▇▇▇▇ US shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, Tax or income tax or employment tax, (including interest and penalties with respect thereto, ) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c4(c), Company ▇▇▇▇▇▇ US shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇▇ for a refund or contest the claim in any permissible manner, and 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 Company ▇▇▇▇▇▇ US shall determine; providedPROVIDED, howeverFURTHER, that if Company ▇▇▇▇▇▇ US directs Executive to pay such claim and s▇▇▇ for a refund, Company ▇▇▇▇▇▇ US shall advance the amount of such payment to Executive Executive, on an interest-free basis basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, Tax or income tax or employment tax, (including interest or penalties with respect thereto, ) imposed with respect to such advance or with respect to any imputed income with respect to such advance (except including the applicable Gross-Up Payment); PROVIDED, FURTHER, that if such a loan would not be permitted under applicable law, Company may not direct Executive is required to pay the claim and s▇▇ for a refund); and further provided that any extension of extend the statute of limitations relating to the payment of taxes for the taxable year of enable ▇▇▇▇▇▇ US to contest such claim, Executive with respect to which such contested amount is claimed to be due is limited may limit this extension solely to such contested amount. Furthermore, Company’s ▇▇▇▇▇▇ US's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount paid or advanced by Company ▇▇▇▇▇▇ US pursuant to this Section 14(c)4, Executive becomes entitled to receive any refund with respect to such claima Gross-Up Payment, Executive shall (subject to Company’s ▇▇▇▇▇▇ US's complying with the requirements to of Section 14(c4(c)) promptly pay Company to ▇▇▇▇▇▇ US the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company ▇▇▇▇▇▇ US pursuant to Section 14(c4(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company ▇▇▇▇▇▇ US does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any payment, award, benefit or distribution (includingor combination thereof) by Employer, without limitationany of Employer's affiliates, one or more trusts established by Employer for the acceleration benefit of its employees, or any paymentother person or entity, award, distribution or benefit), by Company or its subsidiaries to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, or otherwiseotherwise pursuant to or by reason of any other agreement, but determined policy, plan, program or arrangement, including without regard to limitation any additional payments required under this Section 14stock option, stock appreciation right, phantom equity awards or similar right, or the lapse or termination of any restriction on the vesting or exercisability of any of the foregoing) (a “"Payment”") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") by reason of being "contingent on a change in ownership or any corresponding provisions control" of state Willis US or local tax lawWillis Holdings, within Section 280G of the Code (or a▇▇ ▇▇▇cessor ▇▇▇▇▇sion thereto) 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, are hereinafter collectively referred to as, as the “"Excise Tax”"), then Executive shall be entitled to receive an additional payment or payments (a “"Gross-Up Payment”") in an amount such that after payment by Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and 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 from an amount of the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b) Subject to the provisions of Section 14(c)4(a) hereof, all determinations required to be made under this Section 144, including the determination of whether and when a Gross-Up Payment is required and of the amount of any such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by Company’s independent auditors or such other a nationally recognized certified public accounting firm agreed as may be designated by the Parties hereto Employer, and reasonably satisfactory to Executive (the “"Accounting Firm”"), which shall provide detailed supporting calculations both to Company Employer and Executive within 15 fifteen (15) business days after the receipt of notice from Company that Executive has received a PaymentTermination Date, or such earlier time as is requested by Company, Employer; provided that for purposes of determining the amount of any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if anyit is recognized that Executive will 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 to pay state and local income taxes at the highest effective rates applicable to individuals in the state or locality of Executive's residence or place of employment 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 Employer. Any Gross-Up Payment, as determined pursuant to this Section 14(b)4, shall be paid by Employer to Executive (or for the benefit of the Executive to the extent of Company’s withholding obligation with respect appropriate taxing authority on Executive's behalf) when due immediately prior to applicable taxes) no later than the later of (i) the due date for the Executive is required to make payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determinationTax or other taxes. If the Accounting firm Firm determines that no Excise Tax is payable by Executive, it shall furnish Company so indicate to Executive in writing, with a written an opinion that Executive has substantial authority exists for Executive not to report any Excise Tax on his Federal his/her federal state, local income or other tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executivereturn. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon Company Employer and Executivethe Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce Employer's obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. As a result of the uncertainly uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding state or local tax law at the time of the initial any determination by the Accounting Firm hereunder, it is possible that the amount of the Gross-Up Payments which will not have been made Payment determined by Company should have been made (“Underpayment”), consistent with the calculations required Accounting Firm to be made hereunderdue to (or on behalf of) Executive was lower than the amount actually due ("Underpayment"). In the event that Company Employer exhausts its remedies pursuant to Section 14(c4(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, Underpayment that has occurred as promptly as possible and notify Employer and Executive of such calculations, and any such Underpayment (including the Gross-Up Payment to Executive) shall be promptly paid by Company Employer to or for the benefit of Executive. The fees Executive within five (5) business days after receipt of such determination and disbursements of the Accounting Firm shall be paid by Companycalculations. (c) Executive shall notify Company Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company Employer of a any Gross-Up Payment. Such notification shall be given as soon as practicable but not no later than ten (10) business days after Executive receives written notice is informed in writing of such claim and shall apprise Company Employer of the nature of such claim and the date on which such Claim 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 he gives such notice to Company Employer (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company Employer notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: shall (i) give Company Employer any information which is in Executive's possession reasonably requested by Company Employer relating to such claim; , (ii) take such action in connection with contesting such claim as Company Employer 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 Company; Employer, (iii) cooperate with Company Employer in good faith in order to effectively contest such claim; and , and (iv) permit Company Employer to participate in any proceedings relating to such claim; provided, however however, that Company Employer shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, Tax or income tax or employment tax, (including interest and penalties with respect thereto, ) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c4(c), Company Employer shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ sue for a refund or contest the claim in any permissible manner, and ▇▇▇ 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 Company Employer shall determine; provided, howeverfurther, that if Company Employer directs Executive to pay such claim and s▇▇ sue for a refund, Company Employer shall advance pay the amount of such payment claim to Executive on an interest-free basis ▇▇ecutive, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, Tax or income tax or employment tax, (including interest or penalties with respect thereto, ) imposed with respect to such advance payment or with respect to any imputed income with respect to such payment (except including the applicable Gross-Up Payment); provided, further, that if such a loan would not be permitted under applicable law, Company may not direct Executive is required to pay the claim and s▇▇ for a refund); and further provided that any extension of extend the statute of limitations relating to the payment of taxes for the taxable year of enable Employer to contest such claim, Executive with respect to which such contested amount is claimed to be due is limited may limit this extension solely to such contested amount. Furthermore, Company’s Employer's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. The reimbursement of expenses incurred by Executive due to a tax contest or litigation addressing the existence or amount of an Excise Tax liability shall be reimbursed promptly, but in no event be made later than the end of the calendar year next following the calendar year in which the taxes that are subject of the contest or litigation are remitted to the taxing authority (or if no taxes are remitted as a result of such audit or litigation, the end of the calendar year next following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation). In addition, without extending the time of any obligation in this Section 4, any tax Gross-Up Payment shall be made no later than the end of the calendar year next following the calendar year in which the Executive remits the related tax. (d) If, after the receipt by Executive of an amount advanced paid by Company Employer pursuant to this Section 14(c)4, Executive becomes entitled to receive any refund with respect to such claima Gross-Up Payment, Executive shall (subject to Company’s Employer's complying with the requirements to of Section 14(c4(c)) promptly pay Company to Employer the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). IfNotwithstanding the foregoing, after in the receipt event that the obligation to refund any amount shall be a violation of the Sarbanes-Oxley Act of 2002, such obligation to refund shall be null ▇▇▇ ▇▇▇▇. (e) To the extent that the applicable regulations under Code Section 280G permits a later recalculation by Executive the Employer, or requires a later recalculation, of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior whether the Payments are subject to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereofExcise Tax, the amount provisions of the Gross-Up Payment required to this Section 4 shall again be paidapplied based upon such recalculation.

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any paymentpayment or benefit received or to be received by the Executive in connection with a Change in Control or the termination of the Executive’s employment, award, benefit whether such payments or distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries to or for the benefit of Executive (whether benefits are received pursuant to the terms of this Agreement or otherwiseany other plan, but determined without regard to arrangement or agreement with the Company, any additional person whose actions result in a Change in Control or any person affiliated with the Company or such person (all such payments required under this Section 14) (a and benefits being hereinafter called “PaymentTotal Payments”) ), would be subject (in whole or part), to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax law, 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, are hereinafter collectively referred to as, the “Excise Tax”) imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company shall pay to the Executive shall be entitled to receive an such additional payment amounts (a the “Gross-Up Payment”) as may be necessary to place the Executive in an amount such that after payment by Executive the same after-tax position as if no portion ​ ​ ​ ​ ​ /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ​ ​ Executive’s Initials ​ ​ of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect Total Payments had been subject to such taxes, Executive retains from the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b) Subject to the provisions of Section 14(c), all determinations required to be made under this Section 14, including the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, shall be made by Company’s independent auditors or such other accounting firm agreed by the Parties hereto (the “Accounting Firm”), which shall provide detailed supporting calculations to Company within 15 business days after the receipt of notice from Company that Executive has received a Payment, or such earlier time as is requested by Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 14(b), shall be paid to Executive (or for the benefit of the Executive to the extent of Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon Company and Executive. As a result of the uncertainly 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 Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant the Excise Tax is subsequently determined to Section 14(c) and Executive thereafter is required to make a payment of Excise Taxbe less than the amount taken into account hereunder, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior repay to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, time that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any reduction in Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount Tax is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereoffinally determined, the amount portion of the Gross-Up Payment required 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 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 payment the existence or amount of which cannot be paiddetermined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Excise Tax. (a) Anything In the event that the severance and other benefits provided in this Agreement or otherwise payable to Executive constitute “parachute payments” under Section 280G of the contrary notwithstandingInternal Revenue Code of 1986, in as amended (the event it shall be determined that any payment, award, benefit or distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries to or for the benefit of Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 14) (a “PaymentCode”) and would be subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax lawCode, then, except as provided by Section 10(b) below: Executive’s benefits shall be either (i) delivered in full, or any interest or penalties are incurred by Executive with respect (ii) delivered as to such excise tax (lesser extent which would result in no portion of such benefits being subject to the excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, whichever of the “Excise Tax”), then Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) foregoing amounts results in an amount such that after payment the receipt by Executive of all taxes (including any Excise Tax, income on an after-tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes, Executive retains from the Gross-Up Payment an amount equal to the excess, if anybasis, of the greatest amount of benefits. (ib) In addition, in the Excise Tax imposed upon the Paymentsevent a Change in Control occurs, and (ii) Executive’s employment is terminated by the Excise TaxCompany without Cause, if anyor Executive resigns for Good Reason, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the first anniversary of the Effective Date Date, and it is determined by the Accountants (and, therefore, Executive’s non-employee director compensation had not been taken into account in as defined below) or the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but Internal Revenue Service that the portion of the Payments that would be treated as payments or benefits provided for in this Agreement or otherwise constitute “parachute payments” under Section 2800 of within the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes meaning of Section 280G of the Code and will be subject to the excise tax imposed by Section 4999 of the Code, then Executive will receive, as soon as the calculations required under Section 10(c) are complete and upon any notification from the Internal Revenue Service of its determination that could be paid payments or benefits hereunder constitute excess parachute payments, (i) payments from the Company sufficient to pay such excise tax (plus any interest and penalties), and (ii) an additional payment from the Company sufficient to pay the federal and state income and employment taxes and additional excise taxes (plus any interest and penalties) arising from the payments made to Executive without giving rise to any Excise Tax. The reduction of by the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced Company pursuant to this Section 14(asentence (collectively the “Gross-up Payment”). (b) Subject . Notwithstanding the foregoing however, the Company shall only be obligated to the provisions of Section 14(c), all determinations required to be made under this Section 14, including the determination of whether make such a Gross-Up up Payment is required and of the in an amount of any such Gross-Up Payment, shall be made by Company’s independent auditors or such other accounting firm agreed by the Parties hereto (the “Accounting Firm”), which shall provide detailed supporting calculations to Company within 15 business days after the receipt of notice from Company that Executive has received a Payment, or such earlier time as is requested by Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Paymentnecessary, if any, as determined such that the excess of (1) (A) any severance and/or First Year Severance Payment paid or payable to Executive pursuant to this Section 14(b8(a) and (b), shall be paid to Executive (or for the benefit of the Executive to the extent of Company’s withholding obligation with respect to applicable taxesB) no later than the later of any (i) Base Salary paid up until the due date for the payment of any Excise Tax; and termination, (ii) the receipt Signing Bonus, and (iii) the value of Restricted Stock vested prior to, and including, the date of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination Change in Control (measured by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon Company and Executive. As a result closing price of the uncertainly in the application of Section 4999 Company’s common stock as of the Code at applicable vesting date), and (C) the time value of vested Performance Units (measured by the closing price of the initial determination by Company’s common stock as of the Accounting Firm hereunderapplicable vesting date) settled prior to, it is possible that and including, the date of the Change in Control, and (D) the Gross-Up Payments which will not have been made by Company should have been made up Payment, over (“Underpayment”2) all applicable income, employment and excise taxes (including any interest and penalties), consistent whether payable in connection with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Taxsuch Change in Control, the Accounting Firm shall determine the amount of the UnderpaymentGross-up Payment or otherwise, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by Companyequals $1,800,000. (c) Unless Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive agree otherwise in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereofwriting, the determination of Executive’s excise tax liability and amount of the Gross-Up up Payment for purposes of subsection 9(b) above, if any, will be made in writing by the independent auditors who are primarily used by the Company immediately prior to the Change in Control (the “Accountants”). For purposes of making the calculations required by this Section 10, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. Executive and the Company agree to be paidfurnish such information and documents as the Accountants may reasonably request in order to make a determination under this Section 10. The Company will bear all costs the Accountants and/or Executive may reasonably incur in connection with any calculations contemplated by this Section 10.

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by the Company or its subsidiaries to or for the benefit of Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 1417) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax law, 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, are hereinafter collectively referred to as, the “Excise Tax”), then 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 Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes, Executive retains from the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-non- employee director of the Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a17(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 1417, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a17(a). (b) Subject to the provisions of Section 14(c17(c), all determinations required to be made under this Section 1417, including the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, shall be made by the Company’s independent auditors or such other accounting firm agreed by the Parties parties hereto (the “Accounting Firm”), which shall provide detailed supporting calculations to the Company within 15 business days after the receipt of notice from the Company that Executive has received a Payment, or such earlier time as is requested by the Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. The Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 14(b17(b), shall be paid to Executive (or for the benefit of the Executive to the extent of the Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; , and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish the Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, the Company is not required to withhold Excise Tax from payments to Executive. The Company will promptly provide a copy of any such opinion to Executive. Any determination by the Accounting Firm meeting the requirements of this Section 14(b17(b) shall be binding upon the Company and Executive. As a result of the uncertainly in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 14(c17(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company. (c) Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later Later than ten business days after Executive receives written notice 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. Executive shall not pay such claim prior to the expiration of the 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, 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 effectively 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 and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c17(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇▇ for a refund or contest the claim in any permissible manner, and 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 Executive to pay such claim and s▇▇▇ for a refund, the Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, the Company may not direct Executive to pay the claim and s▇▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 14(c17(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to the Company’s complying with the requirements to Section 14(c17(c)) promptly pay the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 14(c17(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (ai) Anything in this Agreement to the contrary notwithstanding, in the event If it shall be is determined that any paymentamount, award, right or benefit paid or distribution payable (including, without limitation, or otherwise provided or to be provided) to the acceleration of any payment, award, distribution or benefit), Executive by the Company or any of its subsidiaries to or for the benefit of Executive (whether pursuant to the terms of affiliates under this Agreement or otherwiseany other plan, but determined without regard to any additional payments required program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 14) 10(d), (a collectively, the “PaymentPayments”) ), would be constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax lawCode, or any interest or penalties are incurred by Executive with respect as amended from time to such excise tax time (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that that, after payment by the Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains from an amount of the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (biii) Subject to the provisions of Section 14(c), all All determinations required to be made under this Section 1410(d), including the determination of whether and when a Gross-Up Payment or a Reduction is required and of required, the amount of any such Gross-Up PaymentPayment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by Company’s independent auditors or such other an independent, nationally recognized accounting firm agreed by mutually acceptable to the Parties hereto Company and the Executive (the “Accounting FirmAuditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company within 15 business days after the receipt of notice from Company that and Executive has received a Payment, or such earlier time as is requested by Company, provided that following any determination that an Excise Tax a Reduction or Gross-Up Payment is payable by Executive necessary. All fees and expenses of the Auditor shall be made on paid by the basis of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial Company, Any Gross-Up Payment, if any, as determined pursuant to this Section 14(b10(d), shall be paid by the Company to Executive (or for the benefit of the Executive to the extent within five (5) days of Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting FirmAuditor’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination All determinations made by the Accounting Firm meeting the requirements of this Section 14(b) Auditor shall be binding upon the Company and the Executive. As a result of ; provided that if, notwithstanding the uncertainly in the application of Section 4999 of the Code at the time of the Auditor’s initial determination by the Accounting Firm hereunderdetermination, it is possible that Gross-Up Payments which will not have been made by Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date other applicable taxing authority) determines that any payment of taxes an additional Excise Tax is due with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determinationPayments, then such advance the Auditor shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, recalculate the amount of the Gross-Up Payment required or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Payment. (iv) Without limiting any earlier payment provided under this Section 10(d), the Gross-Up Payment (or Gross-Up Payments, if applicable) payable to Executive under this Section 10(d) shall be paidpaid to him not later than the last day of Executive’s taxable year following the taxable year in which Executive remits the taxes owed by him that result in the obligation of the Company to pay him such Gross-Up Payment.

Excise Tax. (a) Anything in In the event that the Executive shall become entitled to payments and/or benefits provided by this Agreement to the contrary notwithstanding, or any other amounts in the event it shall be determined that any payment, award, benefit or distribution (including, without limitation, the acceleration “nature of any payment, award, distribution or benefit), by Company or its subsidiaries to or for the benefit of Executive compensation” (whether pursuant to the terms of this Agreement or otherwiseany other plan, but determined without regard to arrangement or agreement with the Company, any additional payments required under this person whose actions result in a change of ownership or effective control covered by Section 14280G(b)(2) of the Internal Revenue Code of 1986, as amended (a “PaymentCode”) would or any person affiliated with the Company or such person) as a result of a Change in Control (collectively the “Company Payments”), and if such Company Payments will be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code or (and any corresponding provisions of state or local similar tax law, or that may hereafter be imposed by any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to astaxing authority), the “Excise Tax”), then Company shall pay to the Executive shall be entitled to receive an additional payment at the time specified in Section 5(e) hereof anadditional amount (a the “Gross-Up Payment”) in an amount such that the net amount retained by the Executive, after payment by Executive deduction of all taxes (including any Excise TaxTax on the Company Payments and any U.S. federal, state, and local income or payroll tax or employment tax) imposed upon the Gross-Up Payment provided for by this Section 5(a), but before deduction for any U.S. federal, state, and any interest local income or penalties imposed with respect to such taxespayroll tax on the Company Payments, Executive retains from the Gross-Up Payment an amount shall be equal to the excess, if any, of Company Payments. (ib) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 145(a) to the contrary, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but the Company Payments do not exceed 110% of the greatest amount (the “Reduced Amount”) that could be paid to the Executive such that the portion receipt of the Company Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive and the Company Payments, in the aggregate, shall be reduced to an amount that is one dollar ($1) less than the Reduced Amount; provided, however, that the reduction shall occur only if the reduced Company Payments received by the Executive (after taking into account further reductions for applicable federal, state and local income, social security and other taxes) would be greater than the unreduced Company Payments to be received by the Executive minus (i) the Excise Tax payable with respect to such Company Payments and (ii) all applicable federal, state and local income, social security and other taxes on such Company Payments. If the Reduced Amount is to be effective, the Company Payments shall be reduced in the following order: (A) any cash severance based on a multiple of annual base salary or bonus, (B) any other cash amounts payable to the Executive, (C) any benefits valued as “parachute payments,” (D) acceleration of vesting of any stock option or similar awards for which the exercise price exceeds the then fair market value, and (E) acceleration of vesting of any equity not covered by clause (D) above. In the event that the Internal Revenue Service or court ultimately makes a determination that the “excess parachute payments” plus the “base amount” is an amount other than as determined initially, an appropriate adjustment shall be made with regard to the Gross-Up Payment or Reduced Amount, as applicable, to reflect the final determination and the resulting impact on whether this Section 5(b) applies. (c) For purposes of determining whether any of the Company Payments will be subject to the Excise Tax and the amount of such Excise Tax, (x) the Company Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 2800 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of the Company’s independent certified public accountants appointed prior to any change in ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel selected by such accountants (the “Accountants”) such Company Payments (in whole or in part) either do not constitute “parachute payments,” including giving effect to the recalculation of stock options in accordance with Treasury Regulation Section 1.280G-1 Q/A33, represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code does in excess of the “base amount” or are otherwise not exceed subject to the Safe Harbor Amount Excise Tax, and (as defined in y) the following sentence) by more than $100,000, then no Grossvalue of any non-up Payment cash benefits or any deferred payment or benefit shall be made to Executive and determined by the amounts payable under this Agreement shall be reduced so that Accountants in accordance with the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes principles of Section 280G of the Code that could be paid to Executive without giving rise to any Excise TaxCode. The reduction of the amounts payable hereunder, if applicable, All determinations hereunder shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b) Subject to the provisions of Section 14(c), all determinations required to be made under this Section 14, including the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, shall be made by Company’s independent auditors or such other accounting firm agreed by the Parties hereto (the “Accounting Firm”), Accountants which shall provide detailed supporting calculations both to the Company within 15 business days after and the receipt of notice from Company that Executive has received a Payment, or at such earlier time as it is requested by Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to or the Executive. The Initial determination of the Accountants, subject to the adjustments provided below, shall be final and binding upon the Company and the Executive. (d) For purposes of determining the amount of the Gross-Up Payment, if anythe Executive’s marginal blended actual rates of federal, as determined pursuant to this Section 14(b), shall be paid to Executive (state and local income taxation in the calendar year in which the change in ownership or for the benefit of effective control that subjects the Executive to the extent of Company’s withholding obligation with respect to applicable taxes) no later than Excise Tax occurs shall be used. In the later of (i) event that the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable subsequently determined by the Accountants to be less than the amount taken into account hereunder at the time the Gross-Up Payment is made, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the prior Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and U.S. federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax or a U.S. federal, state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event that any portion of the Gross-Up Payment to be refunded to the Company has been paid to any U.S. federal, state and local tax authority, repayment thereof (and related amounts) shall not be required until actual refund or credit of such portion has been made to the Executive, and interest payable to the Company shall not exceed the interest received or credited to the Executive by such tax authority for the period it held such portion. The Executive and the Company shall furnish Company with a written opinion mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if the Executive’s claim for refund or credit is denied. In the event that substantial authority exists for Executive not to report any the Excise Tax on his Federal income tax return and, as a result, Company is not required later determined by the Accountants or the Internal Revenue Service (or other taxing authority) to withhold Excise Tax from payments to Executive. Company will promptly provide a copy exceed the amount taken into account hereunder at the time the Gross-Up Payment is made (including by reason of any such opinion to Executive. Any determination by payment the Accounting Firm meeting the requirements existence or amount of this Section 14(b) shall which cannot be binding upon Company and Executive. As a result of the uncertainly in the application of Section 4999 of the Code determined 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 Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification ), the Company shall be given as soon as practicable but not later than ten business days after Executive receives written notice make an additional Gross-Up Payment in respect of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company excess (plus any interest or such shorter period ending on the date that any payment of taxes penalties payable with respect to such claim excess) promptly after the amount of such excess is due). If Company notifies finally determined. (e) The Gross-Up Payment or portion thereof provided for in Section 5(d) above shall be paid not later than the sixtieth (60th) day following an event occurring which subjects the Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would or portion thereof cannot be payable hereunder and finally determined on or before such day, the Company shall pay to the Executive shall be entitled to settle or conteston such day an estimate, as determined in good faith by the case may beAccountants, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to Section 5(d) above, as soon as the amount thereof can reasonably be determined, but in no event later than the ninetieth (90th) day after the occurrence of the event subjecting the Executive to the Excise Tax. Subject to Sections 5(d) and 5(i), in the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (f) In the event of any other issue raised by controversy with the Internal Revenue Service (or any other taxing authority) with regard to the Excise Tax, the Executive shall permit the Company to control issues related to the Excise Tax (at its expense), provided that such issues do not potentially materially adversely affect the Executive, but the Executive shall control any other issues. In the event the issues are interrelated, the Executive and the Company shall in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree the Executive shall make the final determination with regard to the issues. In the event of any conference with any taxing authority as to the Excise Tax or associated income taxes, the Executive shall permit the representative of the Company to accompany the Executive, and the Executive and the Executive’s representative shall cooperate with the Company and its representative. (dg) If, after The Company shall be responsible for all charges of the receipt by Executive of an amount advanced by Accountants. (h) The Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, and the Executive shall (subject promptly deliver to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount each other copies of such refund (together any written communications, and summaries of any verbal communications, with any interest paid or credited thereon after taxes applicable thereto). If, after taxing authority regarding the receipt by Executive Excise Tax. (i) Nothing in this Section 5 is intended to violate the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim 2002 and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereofthat any advance or repayment obligation hereunder would do so, such obligation shall be modified so as to make the advance a nonrefundable payment to the Executive and the repayment obligation null and void. (j) The provisions of this Section 5 shall survive the Executive’s Termination of Employment for any reason and any amount payable under this Section 5 shall be subject to the provisions of the Gross-Up Payment required to be paidSection 21(b).

Excise Tax. (ai) Anything in this Agreement to the contrary notwithstanding, in the event If it shall be is determined that any paymentamount, award, right or benefit paid or distribution payable (including, without limitation, or otherwise provided or to be provided) to the acceleration of any payment, award, distribution or benefit), Executive by the Company or any of its subsidiaries to or for the benefit of Executive (whether pursuant to the terms of affiliates under this Agreement or otherwiseany other plan, but determined without regard to any additional payments required program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 14) 10(d), (a collectively, the “PaymentPayments”) ), would be constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax lawCode, or any interest or penalties are incurred by Executive with respect as amended from time to such excise tax time (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that that, after payment by the Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains from an amount of the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (biii) Subject to the provisions of Section 14(c), all All determinations required to be made under this Section 1410(d), including the determination of whether and when a Gross-Up Payment or a Reduction is required and of required, the amount of any such Gross-Up PaymentPayment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by Company’s independent auditors or such other an independent, nationally recognized accounting firm agreed by mutually acceptable to the Parties hereto Company and the Executive (the “Accounting FirmAuditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company within 15 business days after the receipt of notice from Company that and Executive has received a Payment, or such earlier time as is requested by Company, provided that following any determination that an Excise Tax a Reduction or Gross-Up Payment is payable by Executive necessary. All fees and expenses of the Auditor shall be made on paid by the basis of substantial authorityCompany. Company will promptly provide copies of such supporting calculations to Executive. The Initial Any Gross-Up Payment, if any, as determined pursuant to this Section 14(b10(d), shall be paid by the Company to Executive (or for the benefit of the Executive to the extent within five (5) days of Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting FirmAuditor’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination All determinations made by the Accounting Firm meeting the requirements of this Section 14(b) Auditor shall be binding upon the Company and the Executive. As a result of ; provided that if, notwithstanding the uncertainly in the application of Section 4999 of the Code at the time of the Auditor’s initial determination by the Accounting Firm hereunderdetermination, it is possible that Gross-Up Payments which will not have been made by Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date other applicable taxing authority) determines that any payment of taxes an additional Excise Tax is due with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determinationPayments, then such advance the Auditor shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, recalculate the amount of the Gross-Up Payment required or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to be paidthe Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation of the Gross-Up Payment.

Excise Tax. (ai) Anything in this Agreement to the contrary notwithstanding, in the event if it shall be determined that any payment, award, benefit payment or distribution (including, without limitation, to the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries to Executive or for the Executive’s benefit of Executive (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 14) otherwise (a the “Payment”) would be subject to the excise tax imposed by Section section 4999 of the Code or any corresponding provisions of state or local tax law, or any interest or penalties are incurred by Executive with respect to such excise tax successor provision (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, the “Excise Tax”), then the Executive shall be entitled to receive from the Company an additional payment (a the “Gross-Up Payment”) in an amount such that after payment by Executive the net amount of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Payment and the Gross-Up Payment retained by the Executive after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the payment and all federal, Executive retains from state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment an amount provided for in this Section 6(g), and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and Payment; (ii) Notwithstanding any provision of this Agreement to the Excise Taxcontrary, but giving effect to any redetermination of the amount of Gross-Up payments otherwise required by this Section 6(f), if any, that but for this sentence the Company would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior be obligated to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of make a Gross-Up Payment under this Section 14(a) shall not be conditioned upon to the Executive’s termination of employment. Notwithstanding , and the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion aggregate “present value” of the Payments that would be treated as “parachute payments” to be paid or provided to the Executive under Section 2800 of the Code this Agreement or otherwise does not exceed 1.10 multiplied by three times the Safe Harbor Amount (as defined in Executive’s “base amount,” then the following sentence) by more than $100,000, then no Gross-up Payment shall payments and benefits to be made to Executive and the amounts payable paid or provided under this Agreement shall will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that the Payments, in the aggregate, are reduced no portion of any payment or benefit to the Safe Harbor Amount. The Executive, as so reduced or repaid, constitutes an “Safe Harbor Amountexcess parachute payment.” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for For purposes of this Section 6(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code that could be paid to Executive without giving rise to any Excise TaxCode. The determination of whether any reduction in or repayment of the amounts payable hereunder, if applicable, shall such payments or benefits to be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable provided under this Agreement is required pursuant to this Section 6(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (and no other Payments) shall as defined in Section 6(f)(iii)). Appropriate adjustments will be reducedmade to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 6(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than the amount previously determined to be due. If a Payment intended to be provided under the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments is required to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a6(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 6(b)(iv), payments pursuant to Section 6(b)(v) and payments pursuant to Section 6(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (biii) Subject to the provisions of Section 14(c), all All determinations required to be made under this Section 146, including whether and when the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, shall be made by Company’s independent auditors or such other accounting firm agreed by the Parties hereto (the “Accounting Firm”), which shall provide detailed supporting calculations to Company within 15 business days after the receipt of notice from Company that Executive has received a Payment, or such earlier time as is requested by Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 14(b), shall be paid to Executive (or for the benefit of the Executive to the extent of Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon Company and Executive. As a result of the uncertainly 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 Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. Accountants (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.as defined

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by the Company or its subsidiaries to or for the benefit of the Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 1419) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax law, or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes, the Executive retains from the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee nonemployee director of the Company prior to the Effective Date (and, therefore, the Executive’s non-employee nonemployee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a19(a) shall not be conditioned upon the Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 1419, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 280G of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Up Payment shall be made to the Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to the Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 35. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a19(a). (b) Subject to the provisions of Section 14(c19(c), all determinations required to be made under this Section 1419, including the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up up Payment, shall be made by the Company’s 's independent auditors or such other accounting firm agreed by the Parties parties hereto (the “Accounting Firm”), which shall provide detailed supporting calculations to the Company within 15 business days after the receipt of notice from the Company that the Executive has received a Payment, or such earlier time as is requested by the Company, provided that any determination that an Excise Tax is payable by the Executive shall be made on the basis of substantial authority. The Company will promptly provide copies of such supporting calculations to the Executive. The Initial initial Gross-Up Payment, if any, as determined pursuant to this Section 14(b19(b), shall be paid to the Executive (or for the benefit of the Executive to the extent of the Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; , and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Company with a written opinion that substantial authority exists for the Executive not to report any Excise Tax on his Federal income tax return and, as a result, the Company is not required to withhold Excise Tax from payments to the Executive. The Company will promptly provide a copy of any such opinion to the Executive. Any determination by the Accounting Firm meeting the requirements of this Section 14(b19(b) shall be binding upon the Company and the Executive. As a result of the uncertainly uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 14(c19(c) and the Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company. (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after the Executive receives written notice 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 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 effectively to effectively contest such claim; , and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however however, that the Company shall bear and pay directly all costs and expenses (including 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, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c19(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 s▇▇ 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, however, that if the Company directs the Executive to pay such claim and s▇▇ for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, the Company may not direct the Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 14(c19(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements to of Section 14(c19(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 14(c19(c), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by the Company or its subsidiaries to or for the benefit of Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 1417) (a “”Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax law, 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, are hereinafter collectively referred to as, the “Excise Tax”), then 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 Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes, Executive retains from the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of the Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a17(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 1417, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 280G of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a17(a). (b) Subject to the provisions of Section 14(c17(c), all determinations required to be made under this Section 1417, including the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, shall be made by the Company’s independent auditors or such other accounting firm agreed by the Parties parties hereto (the “Accounting Firm”), which shall provide detailed supporting calculations to the Company within 15 business days after the receipt of notice from the Company that Executive has received a Payment, or such earlier time as is requested by the Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. The Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 14(b17(b), shall be paid to Executive (or for the benefit of the Executive to the extent of the Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; , and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish the Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, the Company is not required to withhold Excise Tax from payments to Executive. The Company will promptly provide a copy of any such opinion to Executive. Any determination by the Accounting Firm meeting the requirements of this Section 14(b17(b) shall be binding upon the Company and Executive. As a result of the uncertainly in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 14(c17(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company. (c) Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice 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. Executive shall not pay such claim prior to the expiration of the 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, 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 effectively to effectively contest such claim; , and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c17(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇▇ for a refund or contest the claim in any permissible manner, and 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 Executive to pay such claim and s▇▇▇ for a refund, the Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, the Company may not direct Executive to pay the claim and s▇▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 14(c17(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to the Company’s complying with the requirements to Section 14(c17(c)) promptly pay the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 14(c17(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. If any benefits paid or distributed to, or realized by, Employee pursuant to this Agreement, together with any other amounts or value otherwise paid or distributed to Employee by Glowpoint (ae.g., the lapsing of restrictions on Restricted Stock) Anything in this Agreement connection with a Change in Control or Corporate Transaction (collectively, the "280G Payments"), would be an "excess parachute payment" as defined in Section 280G of the Code and would thereby subject Employee to the contrary notwithstandingtax imposed under Section 4999 of the Code or any similar tax (the "Excise Tax"), in then Glowpoint shall make Employee whole for any additional taxes or penalties applicable to such 280G Payments due to the event it shall be determined Excise Tax by making a gross-up payment to Employee (the "Gross-Up Payment"), such that any paymentthe total amount of 280G Payments, awardnet of all applicable state, benefit or distribution federal and local income taxes (including, without limitation, the acceleration of any payment, award, distribution or benefitExcise Tax), actually received by Company or its subsidiaries Employee is equal to or for those 280G Payments calculated as if only normally applicable state, federal and local income taxes, and not the benefit of Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 14) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax law, 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, are hereinafter collectively referred to as, the “Excise Tax”), then 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 Excise Tax, income tax or employment tax) imposed upon had applied; provided, the Gross-Up Payment shall include and cover any interest or penalties imposed with respect to such taxesstate, Executive retains from the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, federal and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation local taxes that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid applicable to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b) Subject to the provisions of Section 14(c), all determinations required to be made under this Section 14, including the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, . Glowpoint’s outside auditing firm shall be made by Company’s independent auditors or such other accounting firm agreed by determine the Parties hereto (the “Accounting Firm”), which shall provide detailed supporting calculations to Company within 15 business days after the receipt of notice from Company that Executive has received a Payment, or such earlier time as is requested by Company, provided that any determination that an Excise Tax is payable by Executive shall and make any other calculations under this Section 3.6 within thirty (30) days following the applicable Change in Control, Corporate Transaction or other event resulting in the imposition of the Excise Tax, and the determinations of Glowpoint's outside auditing firm under this Section 3.6 will be made deemed conclusive and binding on the basis of substantial authorityGlowpoint and Employee. Company will promptly provide copies of such supporting calculations to Executive. The Initial Any Gross-Up Payment, if any, as determined Payment pursuant to this Section 14(b), 3.6 shall be paid to Executive Employee within thirty (or for 30) days following the benefit completion of the Executive to the extent determinations of CompanyGlowpoint’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determination. If the Accounting outside auditing firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination by the Accounting Firm meeting the requirements of under this Section 14(b) shall be binding upon Company and Executive. As a result of the uncertainly 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 Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by Company3.6. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (a) Anything in Any other provision of this Agreement to the contrary notwithstanding, in the event it shall be determined that if any payment, award, benefit or distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries to or for the benefit of Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 14) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax law, 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, are hereinafter collectively referred to as, the “Excise Tax”), then 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 Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes, Executive retains from the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation to be paid or provided to you under this Agreement or otherwise is considered to be a “parachute payment” within the meaning of Section 280G(b) of the Code, the Company shall pay to you an additional amount (hereinafter referred to as the “Excise Tax Premium”). The Excise Tax Premium shall be equal to the excise tax determined under Code Section 4999 attributable to the total amount of payments received by you. The Excise Tax Premium shall also include any amount attributable to excise tax on the Excise Tax Premium. The Company shall also pay to you an additional amount (the “Additional Amount”) such that are contingent the net amount received by you, after paying any applicable Excise Tax Premium and any federal or state income, excise or other tax on a Change such additional amount, shall be equal to the amount that you would have received if such Excise Tax Premium were not applicable. You shall be deemed to pay income taxes at all relevant times at the highest marginal rate of income taxation in Control effect in your taxing jurisdiction. The Additional Amount shall include any amount attributable to income, excise or other tax on the Additional Amount. (b) Not later than 30 days following any payment in the nature of compensation described herein, the independent public accountants acting as auditors for the Company on the date of the transaction constituting the change of control within the meaning of Code Section 280G (or another accounting firm designated by you) shall determine whether the sum of the present value of any “parachute payments” payable under this Agreement or otherwise and the present value of any other “parachute payments” received by you upon or after any such change of control is in excess of the amount you can receive without causing you to be subject to an excise tax with respect to such amount on account of Code Section 4999, and shall determine the amount of any Excise Tax Premium and Additional Amount payable to you. The Excise Tax Premium and Additional Amount shall be paid to you as soon as practicable but in no event later than the time when the tax payment is due, including by way of withholding, and shall be net of any amounts required to be withheld for taxes. (c) For purposes of this Section, “present value” means the value determined in accordance with the principles of Section 1274 (b) (2) of the Code under the rules provided in Treasury Regulations under Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a)Code. (bd) Subject to the provisions of Section 14(c), all determinations required to be made under this Section 14, including the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, shall be made by Company’s independent auditors or such other accounting firm agreed by the Parties hereto (the “Accounting Firm”), which shall provide detailed supporting calculations to Company within 15 business days after the receipt of notice from Company that Executive has received a Payment, or such earlier time as is requested by Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 14(b), shall be paid to Executive (or for the benefit of the Executive to To the extent of Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax Code Section 280G is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon Company and Executive. As a result of the uncertainly 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 Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim amended prior to the expiration termination of this Agreement, or is replaced by a successor statute, the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company 5 shall control all proceedings taken be deemed modified without further action of the parties in connection a manner consistent with such contest and, at its sole option, may pursue amendments or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contestsuccessor statutes, as the case may be, any other issue raised by . In the Internal Revenue Service event that Code Section 280G or any other taxing authority. (d) Ifsuccessor statute is repealed, after this Section 5 shall cease to be effective on the receipt by Executive effective date of an such repeal. The parties recognize that Treasury Regulations under Code Sections 280G and 4999 may affect the amount advanced by Company pursuant that may be paid hereunder and agree that, upon the issuance of any such regulations, this Agreement may be modified as in good faith may be deemed necessary in light of the provisions of such regulations to Section 14(c)achieve the purposes hereof, Executive becomes entitled to receive any refund with respect and that consent to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive modifications shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paidunreasonably withheld.

Excise Tax. (a) Anything in this Agreement to To the contrary notwithstanding, in the event it shall be determined extent that any payment, award, benefit payment or distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries to or for the benefit of Executive (whether pursuant to the terms of this Agreement or otherwiseany other plan, but determined without regard arrangement or agreement with the Company, any of its affiliated companies, any person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person, whether paid or payable or distributed or distributable pursuant to any additional payments required under the terms of this Section 14) Agreement or otherwise (a the “PaymentPayments”) would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code or any corresponding provisions of state or local tax law, 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, are hereinafter collectively referred to as, the “Excise Tax”)Code, then Executive the Company shall be entitled reduce the payments to receive an additional payment the amount that is (a “Gross-Up Payment”) in an amount such that after payment by Executive of all taking into account federal, state, local and social security taxes (at the maximum marginal rates, including any Excise Tax, income tax or employment taxexcise taxes imposed by Section 4999 of the Code) imposed upon one dollar less than the Gross-Up Payment and any interest or penalties imposed with respect to such taxes, Executive retains from the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as subject Executive to the Excise Tax (the “parachute payments” under Section 2800 of Safe Harbor Cap”) if, and only if, such reduction would result in Executive receiving a higher net after-tax amount. Unless Executive shall have given prior written notice specifying a different order to the Code does not exceed Company to effectuate the Safe Harbor Amount (as defined Cap, the Payments to be reduced hereunder will be determined in a manner which has the least economic cost to Executive and, to the extent the economic cost is equivalent, will be reduced in the following sentence) by more than $100,000, then no Gross-up inverse order of when the Payment shall be would have been made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If until the reduction specified herein is achieved. Executive’s right to specify the order of the amounts payable under this Agreement would not result in a reduction of the Payments shall apply only to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant extent that it does not directly or indirectly alter the time or method of payment of any amount that is deferred compensation subject to this (and not exempt from) Section 14(a).409A. (b) Subject to the provisions of Section 14(c), all All determinations required to be made under this Section 144, including whether and when the determination of whether a Gross-Up Payment Safe Harbor Cap is required and of the amount of any the reduction of the Payments pursuant to the Safe Harbor Cap and the assumptions to be utilized in arriving at such Gross-Up Paymentdetermination, shall be made by Company’s independent auditors or such other a public accounting firm agreed that is retained by the Parties hereto Company as of the date immediately prior to the Change in Control (the “Accounting Firm”), ) which shall provide detailed supporting calculations both to the Company and Executive within 15 fifteen (15) business days after of the receipt of notice from the Company or Executive that Executive there has received been a Payment, or such earlier time as is requested by Companythe Company (collectively, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 14(b), shall be paid to Executive (or for the benefit of the Executive to the extent of Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon Company and Executive. As a result of the uncertainly 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 Company should have been made (“UnderpaymentDetermination”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to is serving as accountant or auditor for the benefit of Executiveindividual, entity or group effecting the Change in Control, Executive may appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). The All fees and disbursements expenses of the Accounting Firm shall be paid borne solely by Company. (c) the Company and the Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Determination by the Accounting Firm shall be binding upon the Company and Executive. Executive shall notify cooperate, to the extent his reasonable out-of pocket expenses are reimbursed by the Company, with any reasonable requests by the Company in writing of connection with any claim by contests or disputes with the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any the Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries to or for the benefit of Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 14) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax law, 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, are hereinafter collectively referred to as, the “Excise Tax”), then 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 Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes, Executive retains from the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b) Subject to the provisions of Section 14(c), all determinations required to be made under this Section 14, including the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, shall be made by Company’s independent auditors or such other accounting firm agreed by the Parties hereto (the “Accounting Firm”), which shall provide detailed supporting calculations to Company within 15 business days after the receipt of notice from Company that Executive has received a Payment, or such earlier time as is requested by Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 14(b), shall be paid to Executive (or for the benefit of the Executive to the extent of Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon Company and Executive. As a result of the uncertainly 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 Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any payment, award, benefit or distribution (includingor combination thereof) by Employer, without limitationany of Employer's affiliates, one or more trusts established by Employer for the acceleration benefit of its employees, or any paymentother person or entity, award, distribution or benefit), by Company or its subsidiaries to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, or otherwiseotherwise pursuant to or by reason of any other agreement, but determined policy, plan, program or arrangement, including without regard to limitation any additional payments required under this Section 14stock option, stock appreciation right, phantom equity awards or similar right, or the lapse or termination of any restriction on the vesting or exercisability of any of the foregoing) (a “"Payment”") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") by reason of being "contingent on a change in ownership or control" of ▇▇▇▇▇▇ US or ▇▇▇▇▇▇ Holdings, within Section 280G of the Code (or any corresponding provisions of state or local tax law, successor provision thereto) 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, are hereinafter collectively referred to as, as the “"Excise Tax”"), then Executive shall be entitled to receive an additional payment or payments (a “"Gross-Up Payment”") in an amount such that after payment by Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and 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 from an amount of the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b) Subject to the provisions of Section 14(c)4(a) hereof, all determinations required to be made under this Section 144, including the determination of whether and when a Gross-Up Payment is required and of the amount of any such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by Company’s independent auditors or such other a nationally recognized certified public accounting firm agreed as may be designated by the Parties hereto Employer, and reasonably satisfactory to Executive (the “"Accounting Firm”"), which shall provide detailed supporting calculations both to Company Employer and Executive within 15 fifteen (15) business days after the receipt of notice from Company that Executive has received a PaymentTermination Date, or such earlier time as is requested by Company, Employer; provided that for purposes of determining the amount of any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if anyExecutive 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 of Executive's residence or place of employment 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 Employer. Any Gross-Up Payment, as determined pursuant to this Section 14(b)4, shall be paid by Employer to Executive (or for the benefit of the Executive to the extent of Company’s withholding obligation with respect appropriate taxing authority on Executive's behalf) when due immediately prior to applicable taxes) no later than the later of (i) the due date for the Executive is required to make payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determinationexcise Tax or other taxes. If the Accounting firm Firm determines that no Excise Tax is payable by Executive, it shall furnish Company so indicate to Executive in writing, with a written an opinion that Executive has substantial authority exists for Executive not to report any Excise Tax on his Federal his/her federal state, local income or other tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executivereturn. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon Company Employer and Executivethe Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce Employer's obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. As a result of the uncertainly uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding state or local tax law at the time of the initial any determination by the Accounting Firm hereunder, it is possible that the amount of the Gross-Up Payments which will not have been made Payment determined by Company should have been made (“Underpayment”), consistent with the calculations required Accounting Firm to be made hereunderdue to (or on behalf of) Executive was lower than the amount actually due ("Underpayment"). In the event that Company the Employer exhausts its remedies pursuant to Section 14(c4(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, Underpayment that has occurred as promptly as possible and notify Employer and Executive of such calculations, and any such Underpayment (including the Gross-Up Payment to Executive) shall be promptly paid by Company Employer to or for the benefit of Executive. The fees Executive within five (5) business days after receipt of such determination and disbursements of the Accounting Firm shall be paid by Companycalculations. (c) Executive shall notify Company Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company Employer of a any Gross-Up Payment. Such notification shall be given as soon as practicable but not no later than ten (10) business days after Executive receives written notice is informed in writing of such claim and shall apprise Company Employer of the nature of such claim and the date on which such Claim 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 he gives such notice to Company Employer (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company Employer notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: shall (i) give Company Employer any information which is in Executive's possession reasonably requested by Company Employer relating to such claim; , (ii) take such action in connection with contesting such claim as Company Employer 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 Company; Employer, (iii) cooperate with Company Employer in good faith in order to effectively contest such claim; and , and (iv) permit Company Employer to participate in any proceedings relating to such claim; provided, however however, that Company Employer shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, Tax or income tax or employment tax, (including interest and penalties with respect thereto, ) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c4(c), Company Employer shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇▇ for a refund or contest the claim in any permissible manner, and 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 Company Employer shall determine; provided, howeverfurther, that if Company Employer directs Executive to pay such claim and s▇▇▇ for a refund, Company Employer shall advance pay the amount of such payment claim to Executive on an interest-free basis Executive, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, Tax or income tax or employment tax, (including interest or penalties with respect thereto, ) imposed with respect to such advance payment or with respect to any imputed income with respect to such payment (except including the applicable Gross-Up Payment); provided, further, that if such a loan would not be permitted under applicable law, Company may not direct Executive is required to pay the claim and s▇▇ for a refund); and further provided that any extension of extend the statute of limitations relating to the payment of taxes for the taxable year of enable Employer to contest such claim, Executive with respect to which such contested amount is claimed to be due is limited may limit this extension solely to such contested amount. Furthermore, Company’s Employer's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced paid by Company Employer pursuant to this Section 14(c)4, Executive becomes entitled to receive any refund with respect to such claima Gross-Up Payment, Executive shall (subject to Company’s Employer's complying with the requirements to of Section 14(c4(c)) promptly pay Company to Employer the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by the Company or its subsidiaries to or for the benefit of Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 1419) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax law, 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, are hereinafter collectively referred to as, the “Excise Tax”), then 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 Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes, Executive retains from the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of the Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a19(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 1419, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed Executive Employment Agreement – ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Peak Resorts, Inc. 11 the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a19(a). (b) Subject to the provisions of Section 14(c19(c), all determinations required to be made under this Section 1419, including the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, shall be made by the Company’s independent auditors or such other accounting firm agreed by the Parties parties hereto (the “Accounting Firm”), which shall provide detailed supporting calculations to the Company within 15 business days after the receipt of notice from the Company that Executive has received a Payment, or such earlier time as is requested by the Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. The Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 14(b19(b), shall be paid to Executive (or for the benefit of the Executive to the extent of the Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; , and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish the Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, the Company is not required to withhold Excise Tax from payments to Executive. The Company will promptly provide a copy of any such opinion to Executive. Any determination by the Accounting Firm meeting the requirements of this Section 14(b19(b) shall be binding upon the Company and Executive. As a result of the uncertainly in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 14(c19(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company. (c) Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later Later than ten business days after Executive receives written notice 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. Executive shall not pay such claim prior to the expiration of the 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 Executive Employment Agreement – ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Peak Resorts, Inc. 12 with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, 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 effectively to effectively contest such claim; , and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries to or for the benefit of Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 14) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax law, 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, are hereinafter collectively referred to as, the “Excise Tax”), then 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 Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes, Executive retains from the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b) Subject to the provisions of Section 14(c), all determinations required to be made under this Section 14, including the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, shall be made by Company’s independent auditors or such other accounting firm agreed by the Parties hereto (the “Accounting Firm”), which shall provide detailed supporting calculations to Company within 15 business days after the receipt of notice from Company that Executive has received a Payment, or such earlier time as is requested by Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 14(b), shall be paid to Executive (or for the benefit of the Executive to the extent of Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon Company and Executive. As a result of the uncertainly 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 Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter it is required to make a determined that any payment of Excise Tax, or benefit provided by the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of ExecutiveEmployee (the "Payments"), either under this Agreement or otherwise, will be subject to the excise tax (the "Excise Tax") imposed by section 4999 of the Internal Revenue Code or any successor provision ("section 4999"), the Company will, prior to the date on which any amount of the Excise Tax must be paid or withheld, make an additional lump-sum payment (the "Gross-up Payment") to Employee. The fees Gross-up Payment will be sufficient, after giving effect to all federal, state and disbursements other taxes and charges (including interest and penalties, if any) with respect to the Gross-up Payment, to make Employee whole for all taxes (including withholding taxes) and any associated interest and penalties, imposed under or as a result of section 4999. The Gross-up Payment provided for above will be paid on the thirtieth (30th) day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Payments are subject to the Excise Tax, but in no event later than sixty (60) days following termination of employment of Employee. (ii) In the event Employee would be entitled to the Payments which would be subject to the Excise Tax, Employee may, at his option, elect to reduce the Payments he would receive to such an amount as would not be subject to the Excise Tax. To exercise this option, Employee must provide written notice (the "Cap Notice") to the Company of such election within ten (10) business days of the Termination Date and such Cap Notice must specify the manner and amount in which Employee elects to reduce the Payments. Upon receipt of the Cap Notice by the Company, Employee's election will be considered irrevocable and the Company shall have no liability whatsoever for complying with Employee's instructions contained in the Cap Notice. (iii) Determinations under this Section 3.1 will be made by the Accounting Firm. The determinations of the Accounting Firm shall will be paid binding upon the Company and Employee except as the determinations are established in resolution (including by Company. (csettlement) Executive shall notify Company in writing of any claim by a controversy with the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Paymentto have been incorrect. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim All fees and shall apprise Company expenses of the nature of such claim and the date on which such Claim is requested to Firm will be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised paid by the Internal Revenue Service or any other taxing authorityCompany. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any payment, award, benefit or distribution (includingor combination thereof) by Employer, without limitationany of Employer's affiliates, one or more trusts established by Employer for the acceleration benefit of its employees, or any paymentother person or entity, award, distribution or benefit), by Company or its subsidiaries to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, or otherwiseotherwise pursuant to or by reason of any other agreement, but determined policy, plan, program or arrangement, including without regard to limitation any additional payments required under this Section 14stock option, stock appreciation right, phantom equity awards or similar right, or the lapse or termination of any restriction on the vesting or exercisability of any of the foregoing) (a “"Payment”") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") by reason of being "contingent on a change in ownership or control" of ▇▇▇▇▇▇ US or ▇▇▇▇▇▇ Holdings, within Section 280G of the Code (or any corresponding provisions of state or local tax law, successor provision thereto) 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, are hereinafter collectively referred to as, as the “"Excise Tax”"), then Executive shall be entitled to receive an additional payment or payments (a “"Gross-Up Payment”") in an amount such that after payment by Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and 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 from an amount of the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b) Subject to the provisions of Section 14(c)4(a) hereof, all determinations required to be made under this Section 144, including the determination of whether and when a Gross-Up Payment is required and of the amount of any such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by Company’s independent auditors or such other a nationally recognized certified public accounting firm agreed as may be designated by the Parties hereto Employer, and reasonably satisfactory to Executive (the “"Accounting Firm”"), which shall provide detailed supporting calculations both to Company Employer and Executive within 15 fifteen (15) business days after the receipt of notice from Company that Executive has received a PaymentTermination Date, or such earlier time as is requested by Company, Employer; provided that for purposes of determining the amount of any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if anyit is recognized that Executive will 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 to pay state and local income taxes at the highest effective rates applicable to individuals in the state or locality of Executive's residence or place of employment 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 Employer. Any Gross-Up Payment, as determined pursuant to this Section 14(b)4, shall be paid by Employer to Executive (or for the benefit of the Executive to the extent of Company’s withholding obligation with respect appropriate taxing authority on Executive's behalf) when due immediately prior to applicable taxes) no later than the later of (i) the due date for the Executive is required to make payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determinationTax or other taxes. If the Accounting firm Firm determines that no Excise Tax is payable by Executive, it shall furnish Company so indicate to Executive in writing, with a written an opinion that Executive has substantial authority exists for Executive not to report any Excise Tax on his Federal his/her federal state, local income or other tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executivereturn. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon Company Employer and Executivethe Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or <PAGE> 9 reduce Employer's obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. As a result of the uncertainly uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding state or local tax law at the time of the initial any determination by the Accounting Firm hereunder, it is possible that the amount of the Gross-Up Payments which will not have been made Payment determined by Company should have been made (“Underpayment”), consistent with the calculations required Accounting Firm to be made hereunderdue to (or on behalf of) Executive was lower than the amount actually due ("Underpayment"). In the event that Company Employer exhausts its remedies pursuant to Section 14(c4(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, Underpayment that has occurred as promptly as possible and notify Employer and Executive of such calculations, and any such Underpayment (including the Gross-Up Payment to Executive) shall be promptly paid by Company Employer to or for the benefit of Executive. The fees Executive within five (5) business days after receipt of such determination and disbursements of the Accounting Firm shall be paid by Companycalculations. (c) Executive shall notify Company Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company Employer of a any Gross-Up Payment. Such notification shall be given as soon as practicable but not no later than ten (10) business days after Executive receives written notice is informed in writing of such claim and shall apprise Company Employer of the nature of such claim and the date on which such Claim 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 he gives such notice to Company Employer (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company Employer notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: shall (i) give Company Employer any information which is in Executive's possession reasonably requested by Company Employer relating to such claim; , (ii) take such action in connection with contesting such claim as Company Employer 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 Company; Employer, (iii) cooperate with Company Employer in good faith in order to effectively contest such claim; and , and (iv) permit Company Employer to participate in any proceedings relating to such claim; provided, however however, that Company Employer shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, Tax or income tax or employment tax, (including interest and penalties with respect thereto, ) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c4(c), Company Employer shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇▇ for a refund or contest the claim in any permissible manner, and 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 Company Employer shall determine; provided, howeverfurther, that if Company Employer directs Executive to pay such claim and s▇▇▇ for a refund, Company Employer shall advance pay the amount of such payment claim to Executive on an interest-free basis Executive, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, Tax or income tax or employment tax, (including interest or penalties with respect thereto, ) imposed with respect to such advance payment or with respect to any imputed income with respect to such payment (except including the applicable Gross-Up Payment); provided, further, that if such a loan would not be permitted under applicable law, Company may not direct Executive is required to pay the claim and s▇▇ for a refund); and further provided that any extension of extend the statute of limitations relating to the payment of taxes for the taxable year of enable Employer to contest such claim, Executive with respect to which such contested amount is claimed to be due is limited may limit this extension solely to such contested amount. Furthermore, Company’s Employer's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and <PAGE> 10 Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. The reimbursement of expenses incurred by Executive due to a tax contest or litigation addressing the existence or amount of an Excise Tax liability shall be reimbursed promptly, but in no event be made later than the end of the calendar year next following the calendar year in which the taxes that are subject of the contest or litigation are remitted to the taxing authority (or if no taxes are remitted as a result of such audit or litigation, the end of the calendar year next following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation). In addition, without extending the time of any obligation in this Section 4, any tax Gross-Up Payment shall be made no later than the end of the calendar year next following the calendar year in which the Executive remits the related tax. (d) If, after the receipt by Executive of an amount advanced paid by Company Employer pursuant to this Section 14(c)4, Executive becomes entitled to receive any refund with respect to such claima Gross-Up Payment, Executive shall (subject to Company’s Employer's complying with the requirements to of Section 14(c4(c)) promptly pay Company to Employer the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). IfNotwithstanding the foregoing, after in the receipt event that the obligation to refund any amount shall be a violation of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, such obligation to refund shall be null and void. (e) To the extent that the applicable regulations under Code Section 280G permits a later recalculation by Executive the Employer, or requires a later recalculation, of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior whether the Payments are subject to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereofExcise Tax, the amount provisions of the Gross-Up Payment required to this Section 4 shall again be paidapplied based upon such recalculation.

Excise Tax. (ai) Anything in this Agreement to the contrary notwithstanding, in the event If it shall be is determined that any paymentamount, award, right or benefit paid or distribution payable (including, without limitation, or otherwise provided or to be provided) to the acceleration of any payment, award, distribution or benefit), Executive by the Company or any of its subsidiaries to or for the benefit of Executive (whether pursuant to the terms of affiliates under this Agreement or otherwiseany other plan, but determined without regard to any additional payments required program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 14) 6 (a collectively, the “PaymentPayments”) ), would be constitute an “excess parachute payment” within the meaning of Section 280G of the Code, subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax lawCode, or any interest or penalties are incurred by Executive with respect as amended from time to such excise tax time (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than $50,000 greater than the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than $50,000 greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that that, after payment by the Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes), Executive retains from including, without limitation, any income and employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment (and any interest and penalties imposed with respect thereto), the Executive retains an amount of the Gross-Up Payment equal to the excess, if any, of (i) the Excise Tax (including any interest and penalties imposed with respect thereto) imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (biii) Subject to the provisions of Section 14(c), all All determinations required to be made under this Section 146, including the determination of whether and when a Gross-Up Payment or a Reduction is required and of required, the amount of any such Gross-Up PaymentPayment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by Company’s independent auditors or such other an independent, nationally recognized accounting firm agreed by mutually acceptable to the Parties hereto Company and the Executive (the “Accounting FirmAuditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 6. The Auditor shall promptly provide detailed supporting calculations to both the Company within 15 business days after the receipt of notice from Company that and Executive has received a Payment, or such earlier time as is requested by Company, provided that following any determination that an Excise Tax a Reduction or Gross-Up Payment is payable by Executive necessary. All fees and expenses of the Auditor shall be made on paid by the basis of substantial authorityCompany. Company will promptly provide copies of such supporting calculations to Executive. The Initial Any Gross-Up Payment, if any, as determined pursuant to this Section 14(b)6, shall be paid by the Company to Executive (or for the benefit of the Executive to the extent within five (5) days of Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting FirmAuditor’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination All determinations made by the Accounting Firm meeting the requirements of this Section 14(b) Auditor shall be binding upon the Company and the Executive. As a result of ; provided that if, notwithstanding the uncertainly in the application of Section 4999 of the Code at the time of the Auditor’s initial determination by the Accounting Firm hereunderdetermination, it is possible that Gross-Up Payments which will not have been made by Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date other applicable taxing authority) determines that any payment of taxes an additional Excise Tax is due with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determinationPayments, then such advance the Auditor shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, recalculate the amount of the Gross-Up Payment required or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to be paidthe Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation of the Gross-Up Payment.

Excise Tax. (a) Anything in In the event that the Executive shall become entitled to payments and/or benefits provided by this Agreement to the contrary notwithstanding, or any other amounts in the event it shall be determined that any payment, award, benefit or distribution (including, without limitation, the acceleration “nature of any payment, award, distribution or benefit), by Company or its subsidiaries to or for the benefit of Executive compensation” (whether pursuant to the terms of this Agreement or otherwiseany other plan, but determined without regard to arrangement or agreement with the Company, any additional payments required under this person whose actions result in a change of ownership or effective control covered by Section 14280G(b)(2) of the Internal Revenue Code of 1986, as amended (a “PaymentCode”) would or any person affiliated with the Company or such person) as a result of a Change in Control (collectively the “Company Payments”), and if such Company Payments will be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code or (and any corresponding provisions of state or local similar tax law, or that may hereafter be imposed by any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to astaxing authority), the “Excise Tax”), then Company shall pay to the Executive shall be entitled to receive an additional payment at the time specified in Section 5(e) hereof anadditional amount (a the “Gross-Up Payment”) in an amount such that the net amount retained by the Executive, after payment by Executive deduction of all taxes (including any Excise TaxTax on the Company Payments and any U.S. federal, state, and local income or payroll tax or employment tax) imposed upon the Gross-Up Payment provided for by this Section 5(a), but before deduction for any U.S. federal, state, and any interest local income or penalties imposed with respect to such taxespayroll tax on the Company Payments, Executive retains from the Gross-Up Payment an amount shall be equal to the excess, if any, of Company Payments. (ib) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 145(a) to the contrary, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but the Company Payments do not exceed 110% of the greatest amount (the “Reduced Amount”) that could be paid to the Executive such that the portion receipt of the Company Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive and the Company Payments, in the aggregate, shall be reduced to an amount that is one dollar ($1) less than the Reduced Amount; provided, however, that the reduction shall occur only if the reduced Company Payments received by the Executive (after taking into account further reductions for applicable federal, state and local income, social security and other taxes) would be greater than the unreduced Company Payments to be received by the Executive minus (i) the Excise Tax payable with respect to such Company Payments and (ii) all applicable federal, state and local income, social security and other taxes on such Company Payments. If the Reduced Amount is to be effective, the Company Payments shall be reduced in the following order: (A) any cash severance based on a multiple of annual base salary or bonus, (B) any other cash amounts payable to the Executive, (C) any benefits valued as “parachute payments,” (D) acceleration of vesting of any stock option or similar awards for which the exercise price exceeds the then fair market value, and (E) acceleration of vesting of any equity not covered by clause (D) above. In the event that the Internal Revenue Service or court ultimately makes a determination that the “excess parachute payments” plus the “base amount” is an amount other than as determined initially, an appropriate adjustment shall be made with regard to the Gross-Up Payment or Reduced Amount, as applicable, to reflect the final determination and the resulting impact on whether this Section 5(b) applies. (c) For purposes of determining whether any of the Company Payments will be subject to the Excise Tax and the amount of such Excise Tax, (x) the Company Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 2800 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of the Company’s independent certified public accountants appointed prior to any change in ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel selected by such accountants (the “Accountants”) such Company Payments (in whole or in part) either do not constitute “parachute payments,” including giving effect to the recalculation of stock options in accordance with Treasury Regulation Section 1.280G-1 Q/A33, represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code does in excess of the “base amount” or are otherwise not exceed subject to the Safe Harbor Amount Excise Tax, and (as defined in y) the following sentence) by more than $100,000, then no Grossvalue of any non-up Payment cash benefits or any deferred payment or benefit shall be made to Executive and determined by the amounts payable under this Agreement shall be reduced so that Accountants in accordance with the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes principles of Section 280G of the Code that could be paid to Executive without giving rise to any Excise TaxCode. The reduction of the amounts payable hereunder, if applicable, All determinations hereunder shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b) Subject to the provisions of Section 14(c), all determinations required to be made under this Section 14, including the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, shall be made by Company’s independent auditors or such other accounting firm agreed by the Parties hereto (the “Accounting Firm”), Accountants which shall provide detailed supporting calculations both to the Company within 15 business days after and the receipt of notice from Company that Executive has received a Payment, or at such earlier time as it is requested by Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to or the Executive. The Initial determination of the Accountants, subject to the adjustments provided below, shall be final and binding upon the Company and the Executive. (d) For purposes of determining the amount of the Gross-Up Payment, if anythe Executive’s marginal blended actual rates of federal, as determined pursuant to this Section 14(b), shall be paid to Executive (state and local income taxation in the calendar year in which the change in ownership or for the benefit of effective control that subjects the Executive to the extent of Company’s withholding obligation with respect to applicable taxes) no later than Excise Tax occurs shall be used. In the later of (i) event that the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable subsequently determined by the Accountants to be less than the amount taken into account hereunder at the time the Gross-Up Payment is made, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the prior Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and U.S. federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax or a U.S. federal, state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event that any portion of the Gross-Up Payment to be refunded to the Company has been paid to any U.S. federal, state and local tax authority, repayment thereof (and related amounts) shall not be required until actual refund or credit of such portion has been made to the Executive, and interest payable to the Company shall not exceed the interest received or credited to the Executive by such tax authority for the period it held such portion. The Executive and the Company shall furnish Company with a written opinion mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if the Executive’s claim for refund or credit is denied. In the event that substantial authority exists for Executive not to report any the Excise Tax on his Federal income tax return and, as a result, Company is not required later determined by the Accountants or the Internal Revenue Service (or other taxing authority) to withhold Excise Tax from payments to Executive. Company will promptly provide a copy exceed the amount taken into account hereunder at the time the Gross-Up Payment is made (including by reason of any such opinion to Executive. Any determination by payment the Accounting Firm meeting the requirements existence or amount of this Section 14(b) shall which cannot be binding upon Company and Executive. As a result of the uncertainly in the application of Section 4999 of the Code determined 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 Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification ), the Company shall be given as soon as practicable but not later than ten business days after Executive receives written notice make an additional Gross-Up Payment in respect of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company excess (plus any interest or such shorter period ending on the date that any payment of taxes penalties payable with respect to such claim excess) promptly after the amount of such excess is due). If Company notifies finally determined. (e) The Gross-Up Payment or portion thereof provided for in Section 5(d) above shall be paid not later than the sixtieth (60th) day following an event occurring which subjects the Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would or portion thereof cannot be payable hereunder and finally determined on or before such day, the Company shall pay to the Executive shall be entitled to settle or conteston such day an estimate, as determined in good faith by the case may beAccountants, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to Section 5(d) above, as soon as the amount thereof can reasonably be determined, but in no event later than the ninetieth (90th) day after the occurrence of the event subjecting the Executive to the Excise Tax. Subject to Sections 5(d) and 5(i), in the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (f) In the event of any other issue raised by controversy with the Internal Revenue Service (or any other taxing authority) with regard to the Excise Tax, the Executive shall permit the Company to control issues related to the Excise Tax (at its expense), provided that such issues do not potentially materially adversely affect the Executive, but the Executive shall control any other issues. In the event the issues are interrelated, the Executive and the Company shall in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree the Executive shall make the final determination with regard to the issues. In the event of any conference with any taxing authority as to the Excise Tax or associated income taxes, the Executive shall permit the representative of the Company to accompany the Executive, and the Executive and the Executive’s representative shall cooperate with the Company and its representative. (dg) If, after The Company shall be responsible for all charges of the receipt by Executive of an amount advanced by Accountants. (h) The Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, and the Executive shall (subject promptly deliver to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount each other copies of such refund (together any written communications, and summaries of any verbal communications, with any interest paid or credited thereon after taxes applicable thereto). If, after taxing authority regarding the receipt by Executive Excise Tax. (i) Nothing in this Section 5 is intended to violate the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim 2002 and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereofthat any advance or repayment obligation hereunder would do so, such obligation shall be modified so as to make the advance a nonrefundable payment to the Executive and the repayment obligation null and void. (j) The provisions of this Section 5 shall survive the Executive’s Termination of Employment for any reason and any amount payable under this Section 5 shall be subject to the provisions of the Gross-Up Payment required to be paidSection 22(b).

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that If any payment, award, benefit payment or distribution (including, without limitation, by the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries to or for the benefit of Executive (whether paid or payable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 14) 5.4 (a “"Payment”")) would be is subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax law, or any interest or penalties are incurred by Executive with respect to such excise tax thereon (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, the “"Excise Tax”), ") then Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") in an amount such that after payment by Executive of all taxes including, without limitation, any income taxes (including together with any interest or penalties any income taxes (together with any interest or penalties thereon, the "Additional Income tax") or any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes, Executive retains from an amount of the Gross-Up up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b) Subject to the provisions of Section 14(c5.4(c), all determinations required to be made under this Section 145.4, including the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, shall be made by Company’s the firm of independent auditors or such other accounting firm agreed public accountants selected by the Parties hereto Company to audit its financial statements (the “"Accounting Firm”), ") which shall provide detailed supporting calculations both to the Company and executive within 15 fifteen (15) business days after the receipt of notice from Company Executive that Executive there has received been a Payment, or such earlier time as is requested by the Company, provided that any determination that an Excise Tax is payable by Executive . All fees and expenses of the Accounting Firm shall be made on borne solely by the basis of substantial authorityCompany. Company will promptly provide copies of such supporting calculations to Executive. The Initial Any Gross-Up Payment, if any, as determined pursuant to this Section 14(b)5.4, shall be paid to Executive within five (or for the benefit of the Executive to the extent of Company’s withholding obligation with respect to applicable taxes5) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) business days after the receipt of the Accounting Firm’s 's determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon the Company and Executive. As a result of the uncertainly 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 additional Gross-Up Payments which will not payments should have been made by the Company should have been made (“an "Underpayment”"), consistent with . If the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c5.4(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting accounting Firm shall determine the amount of the Underpayment, if any, Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by Company. (c) Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a the Gross-Up Payment. Such notification notice shall be given as soon as practicable but not no later than ten (10) business days after Executive receives written notice knows of such claim and shall apprise the Company of the nature and date of requested payment of such claim and the date on which such Claim is requested to be paidclaim. Executive shall not pay such claim prior before the earlier of (x) the date thirty (30) days after Executive's notice to the expiration of the 30-day period following Company or (y) the date on which it gives such notice to 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give the Company any reasonable requested information reasonably requested by 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 and shall indemnify and hold such Executive harmless, on an after-tax basis, for any Excise Tax, income tax Tax or employment tax, including interest and penalties with respect thereto, additional Income Tax imposed as a result of such representation and any payment of costs and expenses. Without limitation on the foregoing provisions of limiting this Section 14(c5.4(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may (1) pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, (2) either direct Executive to pay the tax claimed and s▇▇▇ for a refund or contest the claim in any permissible manner, and . 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 such Executive to pay such claim and s▇▇▇ for a refund, the Company shall advance the amount of such payment to Executive Executive, on an interest-free basis basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax Tax or employment tax, including interest or penalties with respect thereto, Income Tax imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund)advance; and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, contest any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an any amount advanced by the Company pursuant to Section 14(c5.4(c), Executive becomes entitled to receive any refund with respect to such claim, Executive executive shall (subject to the Company’s 's complying with the requirements to of Section 14(c5.4(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 14(c5.4(c), a determination is made that such Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 thirty days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the any Gross-Up Payment required to be paid.

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any payment, awardbenefit, benefit or distribution (including, without limitation, by the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries Firm to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 14paragraph) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any corresponding provisions of state or local tax law, 1986 (the “Code”) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains from an amount of the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b) Subject to the provisions of Section 14(c), all All determinations required to be made under this Section 14paragraph, including the determination of whether and when a Gross-Up Payment is required and of the amount of any such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by Company’s independent auditors Deloitte & Touche LLP or such other certified public accounting firm agreed reasonably acceptable to the Firm as may be designated by the Parties hereto Executive (the “Accounting Firm”), ) which shall provide detailed supporting sup porting calculations both to Company Lazard and the Executive within 15 business days after of the receipt of notice from Company the Executive that Executive there has received been a Payment, or such earlier time as is requested by Company, provided that any determination that an Excise Tax is payable by Executive Lazard. All fees and expenses of the Accounting Firm shall be made on the basis of substantial authorityborne solely by Lazard. Company will promptly provide copies of such supporting calculations to Executive. The Initial Any Gross-Up Payment, if any, as determined pursuant to this Section 14(b), Payment shall be paid by Lazard to Executive (or for the benefit of the Executive to the extent within five days of Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; , and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon Company Lazard and the Executive. As a result of the uncertainly 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 Company Lazard should have been made (“Underpayment”) or that Gross-Up Payments which were made by Lazard should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) there occurs an Underpayment and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, Underpayment that has occurred and any such Underpayment shall be promptly paid by Company Lazard to or for the benefit of the Executive. The fees and disbursements of In the Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim event that there occurs an Overpayment and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claimthe Excise Tax, the Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company to Lazard the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any payment, award, benefit or distribution (includingor combination thereof) by Employer, without limitationany of Employer's affiliates, one or more trusts established by Employer for the acceleration benefit of its employees, or any paymentother person or entity, award, distribution or benefit), by Company or its subsidiaries to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, or otherwiseotherwise pursuant to or by reason of any other agreement, but determined policy, plan, program or arrangement, including without regard to limitation any additional payments required under this Section 14stock option, stock appreciation right, phantom equity awards or similar right, or the lapse or termination of any restriction on the vesting or exercisability of any of the foregoing) (a “"Payment”") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") by reason of being "contingent on a change in ownership or control" of ▇▇▇▇▇▇ US or ▇▇▇▇▇▇ Holdings, within Section 280G of the Code (or any corresponding provisions of state or local tax law, successor provision thereto) 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, are hereinafter collectively referred to as, as the “"Excise Tax”"), then Executive shall be entitled to receive an additional payment or payments (a “"Gross-Up Payment”") in an amount such that after payment by Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and 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 from an amount of the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (b) Subject to the provisions of Section 14(c)4(a) hereof, all determinations required to be made under this Section 144, including the determination of whether and when a Gross-Up Payment is required and of the amount of any such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by Company’s independent auditors or such other a nationally recognized certified public accounting firm agreed as may be designated by the Parties hereto Employer, and reasonably satisfactory to Executive (the “"Accounting Firm”"), which shall provide detailed supporting calculations both to Company Employer and Executive within 15 fifteen (15) business days after the receipt of notice from Company that Executive has received a PaymentTermination Date, or such earlier time as is requested by Company, Employer; provided that for purposes of determining the amount of any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if anyExecutive 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 of Executive's residence or place of employment 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 Employer. Any Gross-Up Payment, as determined pursuant to this Section 14(b)4, shall be paid by Employer to Executive (or for the benefit of the Executive to the extent of Company’s withholding obligation with respect appropriate taxing authority on Executive's behalf) when due immediately prior to applicable taxes) no later than the later of (i) the due date for the Executive is required to make payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determinationexcise Tax or other taxes. If the Accounting firm Firm determines that no Excise Tax is payable by Executive, it shall furnish Company so indicate to Executive in writing, with a written an opinion that Executive has substantial authority exists for Executive not to report any Excise Tax on his Federal his/her federal state, local income or other tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executivereturn. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon Company Employer and Executivethe Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce Employer's obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. As a result of the uncertainly uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding state or local tax law at the time of the initial any determination by the Accounting Firm hereunder, it is possible that the amount of the Gross-Up Payments which will not have been made Payment determined by Company should have been made (“Underpayment”), consistent with the calculations required Accounting Firm to be made hereunderdue to (or on behalf of) Executive was lower than the amount actually due ("Underpayment"). In the event that Company the Employer exhausts its remedies pursuant to Section 14(c4(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, Underpayment that has occurred as promptly as possible and notify Employer and Executive of such calculations, and any such Underpayment (including the Gross-Up Payment to Executive) shall be promptly paid by Company Employer to or for the benefit of Executive. The fees Executive within five (5) business days after receipt of such determination and disbursements of the Accounting Firm shall be paid by Companycalculations. (c) Executive shall notify Company Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company Employer of a any Gross-Up Payment. Such notification shall be given as soon as practicable but not no later than ten (10) business days after Executive receives written notice is informed in writing of such claim and shall apprise Company Employer of the nature of such claim and the date on which such Claim 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 he gives such notice to Company Employer (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company Employer notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: shall (i) give Company Employer any information which is in Executive's possession reasonably requested by Company Employer relating to such claim; , (ii) take such action in connection with contesting such claim as Company Employer 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 Company; Employer, (iii) cooperate with Company Employer in good faith in order to effectively contest such claim; and , and (iv) permit Company Employer to participate in any proceedings relating to such claim; provided, however however, that Company Employer shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, Tax or income tax or employment tax, (including interest and penalties with respect thereto, ) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c4(c), Company Employer shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇▇ for a refund or contest the claim in any permissible manner, and 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 Company Employer shall determine; provided, howeverfurther, that if Company Employer directs Executive to pay such claim and s▇▇▇ for a refund, Company Employer shall advance pay the amount of such payment claim to Executive on an interest-free basis Executive, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, Tax or income tax or employment tax, (including interest or penalties with respect thereto, ) imposed with respect to such advance payment or with respect to any imputed income with respect to such payment (except including the applicable Gross-Up Payment); provided, further, that if such a loan would not be permitted under applicable law, Company may not direct Executive is required to pay the claim and s▇▇ for a refund); and further provided that any extension of extend the statute of limitations relating to the payment of taxes for the taxable year of enable Employer to contest such claim, Executive with respect to which such contested amount is claimed to be due is limited may limit this extension solely to such contested amount. Furthermore, Company’s Employer's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced paid by Company Employer pursuant to this Section 14(c)4, Executive becomes entitled to receive any refund with respect to such claima Gross-Up Payment, Executive shall (subject to Company’s Employer's complying with the requirements to of Section 14(c4(c)) promptly pay Company to Employer the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). If. (e) To the extent that the applicable regulations under Code Section 280G permits a later recalculation by the Employer, after or requires a later recalculation of whether the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior Payments are subject to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereofExcise Tax, the amount provisions of the Gross-Up Payment required to this Section 4 shall again be paidapplied based upon such recalculation.

Excise Tax. (ai) Anything in this Agreement to the contrary notwithstanding, in the event If it shall be is determined that any paymentamount, award, right or benefit paid or distribution payable (including, without limitation, or otherwise provided or to be provided) to the acceleration of any payment, award, distribution or benefit), Executive by the Company or any of its subsidiaries to or for the benefit of Executive (whether pursuant to the terms of affiliates under this Agreement or otherwiseany other plan, but determined without regard to any additional payments required program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 14) 10(d), (a collectively, the “PaymentPayments”) ), would be constitute an “excess parachute payment” within the meaning of Section 280G of the Code, subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax lawCode, or any interest or penalties are incurred by Executive with respect as amended from time to such excise tax time (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that that, after payment by the Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains from an amount of the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (biii) Subject to the provisions of Section 14(c), all All determinations required to be made under this Section 1410(d), including the determination of whether and when a Gross-Up Payment or a Reduction is required and of required, the amount of any such Gross-Up PaymentPayment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by Company’s independent auditors or such other an independent, nationally recognized accounting firm agreed by mutually acceptable to the Parties hereto Company and the Executive (the “Accounting FirmAuditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company within 15 business days after the receipt of notice from Company that and Executive has received a Payment, or such earlier time as is requested by Company, provided that following any determination that an Excise Tax a Reduction or Gross-Up Payment is payable by Executive necessary. All fees and expenses of the Auditor shall be made on paid by the basis of substantial authorityCompany. Company will promptly provide copies of such supporting calculations to Executive. The Initial Any Gross-Up Payment, if any, as determined pursuant to this Section 14(b10(d), shall be paid by the Company to Executive (or for the benefit of the Executive to the extent within five (5) days of Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting FirmAuditor’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination All determinations made by the Accounting Firm meeting the requirements of this Section 14(b) Auditor shall be binding upon the Company and the Executive. As a result of ; provided that if, notwithstanding the uncertainly in the application of Section 4999 of the Code at the time of the Auditor’s initial determination by the Accounting Firm hereunderdetermination, it is possible that Gross-Up Payments which will not have been made by Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date other applicable taxing authority) determines that any payment of taxes an additional Excise Tax is due with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determinationPayments, then such advance the Auditor shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, recalculate the amount of the Gross-Up Payment required or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation of the Gross-Up Payment. (iv) Without limiting any earlier payment provided under this Section 10(d), the Gross-Up Payment (or Gross-Up Payments, if applicable) payable to Executive under this Section 10(d) shall be paidpaid to him not later than the last day of Executive’s taxable year following the taxable year in which Executive remits the taxes owed by him that result in the obligation of the Company to pay him such Gross-Up Payment; provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(d) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv).

Excise Tax. (a) Anything in this Agreement to the contrary notwithstanding, in the event if it shall be determined that any payment, award, benefit payment or distribution (including, without limitation, to the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries to Employee or for the Employee’s benefit of Executive (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 14) otherwise (a the “Payment”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any corresponding provisions of state or local tax law, 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, are hereinafter collectively referred to as, the “Excise Tax”), then Executive the Employee shall be entitled to receive from Arc an additional payment (a the “Gross-Up Payment”) in an amount such that after payment by Executive the net amount of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Payment and the Gross-Up Payment retained by the Employee after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the Payment and all federal, Executive retains from state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Paymentsprovided for in this Section, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken taking into account in any lost or reduced tax deductions on account of the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that shall be equal to the portion Payment; (b) All determinations required to be made under this Section, including whether and when the Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations shall be made by Accountants which Arc shall request provide the Employee and Arc with detailed supporting calculations with respect to such Gross-Up Payment at the time the Employee is entitled to receive the Payment. For the purposes of this Section, the “Accountants” shall mean Arc’s independent certified public accountants. All fees and expenses of the Accountants shall be borne solely by ▇▇▇. For the purposes of determining whether any of the Payments that would will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” under Section 2800 of within the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes meaning of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction Code, and all “parachute payments” in excess of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments “base amount” (as defined under Section 3. For purposes 280G(b)(3) of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other PaymentsCode) shall be reduced. If treated as subject to the reduction Excise Tax, unless and except to the extent that in the opinion of the amounts payable under this Agreement would Accountants such Payments (in whole or in part) either do not result in a reduction constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4) of the Payments Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax; for purposes of determining the Safe Harbor Amount, no amounts payable under this Agreement amount of the Gross-Up Payment the Employee shall be reduced pursuant deemed to this Section 14(a). (b) Subject to pay Federal income taxes at the provisions highest applicable marginal rate of Section 14(c), all determinations required to be made under this Section 14, including Federal income taxation for the determination of whether a calendar year in which the Gross-Up Payment is required to be made and to pay any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of any such the Employee’s adjusted gross income); and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment, shall be made by CompanyPayment in the Employee’s independent auditors or such other accounting firm agreed by the Parties hereto (the “Accounting Firm”), which shall provide detailed supporting calculations to Company within 15 business days after the receipt of notice from Company that Executive has received a Payment, or such earlier time as is requested by Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authorityadjusted gross income. Company will promptly provide copies of such supporting calculations to Executive. The Initial Any Gross-Up Payment, if any, as determined pursuant Payment with respect to this Section 14(b), any Payment shall be paid by ▇▇▇ at the time the Employee is entitled to Executive (or for receive the benefit of the Executive to the extent of Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax; and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to ExecutivePayment. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) Accountants shall be binding upon Company Arc and Executivethe Employee. As a result of the uncertainly uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm Accountants hereunder, it is possible that the Gross-Up Payments which Payment made will not have been made by Company an amount less than Arc should have been made paid pursuant to this Section (the “Underpayment”’), consistent with the calculations required to be made hereunder. In the event that Company Arc exhausts its remedies pursuant to Section 14(c) and Executive thereafter the Employee is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company Arc to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by CompanyEmployee’s benefit. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and 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 Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.