Common use of Gross-Up Payment Clause in Contracts

Gross-Up Payment. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or acceleration of vesting of any award or benefit by the Company or its Subsidiaries to or for the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration pursuant to the terms of this Agreement or otherwise) (a "Payment") would be subject to the excise tax imposed by Section 4999 of 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 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 interest or penalties imposed with respect to such taxes) imposed upon the Gross-Up Payment, the Executive retains an amount equal to the sum of (i) the Excise Tax imposed upon the Payments and (ii) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (1) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, (2) pay 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 deduction of such state and local taxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income. The payment of a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon the Executive's termination of employment or the receipt of severance benefits under this Agreement.

Gross-Up Payment. (a) Anything in this Agreement to the contrary notwithstanding, in the event If it shall be determined that any payment, payment or distribution or acceleration of vesting of any award or benefit by the Company or its Subsidiaries to or for the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration you pursuant to the terms this Agreement, including any payments made pursuant to Articles V and VI of this Agreement or otherwise) (a Agreement(a "Base Payment") would be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the CodeInternal Revenue Code of 1986, or any interest or penalties are incurred by the Executive with respect to such excise tax as amended (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise TaxCode"), then the Executive you shall be entitled to receive an additional payment (a the "Gross-Up Payment") in an amount such that the net amount retained by you, after payment by the Executive calculation and deduction of all any Excise Tax on the Base Payment and any federal, state, and local taxes (including any interest or penalties imposed with respect to such taxes) imposed upon and Excise Tax on the Gross-Up Payment, the Executive retains an amount shall be equal to the sum of (i) the Excise Tax imposed upon the Payments and (ii) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madeBase Payment. For purposes of In determining this amount, the amount of the Gross-Up Payment, the Executive shall be deemed Payment attributable to (1) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to shall be made, (2) pay 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 reduced by the maximum reduction in federal income taxes which that could be obtained from by the deduction of such state and local taxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion portion of the Gross-Up Payment in attributable to state and local income taxes. Finally, the Executive's adjusted gross incomeGross-Up Payment shall be reduced by income or excise tax withholding payments made by the Company to any federal, state, or local taxing authority with respect to the Gross-Up Payment that were not deducted from compensation payable to you. The payment of All determinations required to be made under this Section 2.3, including whether and when a Gross-Up Payment under this Section 3(ais required, the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determination, except as specified above, shall be made by the Company's independent auditor immediately prior to the date of the Change of Control (the "Accounting Firm"), which shall provide detailed supporting calculations both to the Company and you within fifteen (15) shall in no event be conditioned upon the Executive's termination of employment or business days after the receipt of severance benefits under this Agreementnotice from you that there should be a Gross-Up Payment. The determination of tax liability made by the Accounting Firm shall be subject to review by your tax advisor, and if your tax advisor does not agree with the determination reached by the Accounting Firm, then the Accounting Firm and your tax advisor shall jointly designate a nationally recognized public accounting firm, which shall make the determination. All fees and expenses of the accountants and tax advisors retained by either you or the Company shall be borne by the Company. Any Gross-Up Payment shall be paid by the Company to you within five (5) days after the receipt of the determination. Any determination by a jointly designated public accounting firm shall be binding upon the Company and you. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination hereunder, it is possible that Gross-Up Payments will not have been made by the Company that should have been made consistent with the calculations required to be made hereunder ("Underpayment"). In the event that you thereafter are required to make a payment of any Excise Tax, any such Underpayment shall be promptly paid by the Company to or for the benefit of you along with any Gross-Up thereon to relieve you of 100% of the cost of any Excise Tax and other Federal, state and local taxes on the Underpayment.

Gross-Up Payment. (a) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any payment, distribution or acceleration of vesting of any award or benefit by the Company or its Subsidiaries to or for the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration payment pursuant to the terms of this Agreement agreement or otherwise) (a "Payment") would any other agreement will be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986 (“Code, ”) or any interest successor or penalties are incurred by similar provision, the 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 the Executive Company shall be entitled to receive pay you an additional payment amount (a "the “Gross-Up Payment"”) in an amount such that the net amount retained by you after payment by the Executive deduction of all taxes any Excise Tax on such payments (including excluding payments pursuant to this paragraph 9), and after deduction for any interest or penalties imposed with respect to such taxes) imposed federal, state and local income tax and Excise Tax upon the Gross-Up Paymentpayment provided for by this paragraph, the Executive retains an amount shall be equal to the sum amount of such payments (iexcluding payments pursuant to this paragraph 9) before payment of any Excise Tax (hereinafter the “Excise Tax Compensation Net Payment”). For purposes of determining whether any of such payments will be subject to the Excise Tax imposed upon and the Payments and (ii) amount of such Excise Tax, any payments or benefits received or to be received by you in connection with a Change of Control or your termination of employment shall be treated as “parachute payments” within the product meaning of any deductions disallowed because Section 280G of the inclusion Code, and all “excess parachute payments” within the meaning of Section 280G of the Gross-Up Payment Code shall be treated as subject to the Excise Tax, unless in the Executive's adjusted gross income for federal income opinion of tax purposes counsel selected by the Company’s independent auditors and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is acceptable to be madeyou such payments or benefits do not constitute parachute payments or excess parachute payments. For purposes of determining the amount of the Gross-Up Payment, the Executive you shall be deemed to (1) pay applicable all federal income taxes at the highest applicable marginal rates rate of federal income taxation for in the calendar year in which the Gross-Up Payment is to be made, (2) pay applicable made and state and local income taxes at the highest applicable marginal rate rates of taxation for in the calendar year in which state and locality of your residence on the Gross-Up Payment is to be madeDate of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of your employment, you shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, an amount necessary so that the total payments hereunder equal the Excise Tax Compensation Net Payment, plus interest on the amount of such repayment at a rate equivalent to the rate described in Section 280G (3d) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because (4) of the inclusion Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of your employment, the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable with respect to such excess) at the Executive's adjusted gross incometime that the amount of such excess is finally determined. The payment of a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon paid not later than the Executive's termination Date of employment Termination or, if and to the extent such payment is not known or calculable as of such date, as soon as the receipt of severance benefits under this Agreementamount is known and calculable.

Gross-Up Payment. (ai) Anything in this Agreement letter to the contrary or any termination of the Equity Compensation notwithstanding, in the event it shall be determined that any payment, payment or distribution or acceleration of vesting of any award benefit received or benefit to be received by the Company or its Subsidiaries to or for the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration you pursuant to the terms of this Agreement letter or otherwiseany other payment or distribution or benefit made or provided by the Company, or any of its subsidiaries and affiliates, to or for your benefit (whether pursuant to this letter or otherwise and determined without regard to any additional payments required under this Paragraph 5) (a "Payment") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code, ") or any interest or penalties are incurred by the Executive you with respect to such excise tax (such excise tax, together with any such interest and penalties, are is hereinafter collectively referred to as the "Excise Tax"), then the Executive you shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive you of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, the Executive retains you retain an amount of the Gross-Up Payment equal to the sum of (ix) the Excise Tax imposed upon the Payments and (iiy) the product of any deductions actually disallowed because under Section 68 of the Code solely as a direct result of the inclusion of the Gross-Up Payment in the Executive's your adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive you shall be deemed to (1i) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, made and (2ii) pay 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 deduction of such state and local taxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income. The payment of a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon the Executive's termination of employment or the receipt of severance benefits under this Agreementtaxes.

Gross-Up Payment. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or acceleration of vesting of any award or benefit by the Company or its Subsidiaries to or for the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration pursuant to the terms of this Agreement or otherwise) (a "“Payment"”) would be subject to the excise tax imposed by Section 4999 of 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 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 interest or penalties imposed with respect to such taxes) imposed upon the Gross-Up Payment, the Executive retains an amount equal to the sum of (i) the Excise Tax imposed upon the Payments and (ii) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive's ’s adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (1) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, (2) pay 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 deduction of such state and local taxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Executive's ’s adjusted gross income. The payment of a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon the Executive's ’s termination of employment or the receipt of severance benefits under this Agreement.

Gross-Up Payment. (a) Anything in this Agreement to the contrary notwithstanding, in In the event a Retention Payments are made to you under Sections 2 and/or 3 and it shall be is determined that any payment, payment (other than the Gross-Up Payments provided for herein) or distribution or acceleration of vesting of any award or benefit by the Company or any of its Subsidiaries affiliates to or for the benefit of the Executive (your benefit, whether paid or payable, payable or distributed or distributable or accelerated or subject to acceleration pursuant to the terms of this Agreement or otherwise) otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, or the lapse or termination of any restriction on, or 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") (or any successor provision thereto) 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 successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise taxtax or taxes, together with any such interest and penalties, are hereinafter hereafter collectively referred to as the "Excise Tax"), then the Executive shall you will be entitled to receive an additional payment or payments (a "Gross-Up Payment") in an amount such that that, after payment by the Executive you of all taxes (including any interest or penalties imposed with respect to such taxes) ), including any Excise Tax, imposed upon the Gross-Up Payment, the Executive retains you retain an amount of the Gross-Up Payment equal to the sum of (i) the Excise Tax imposed upon the Payments and (ii) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madePayments. For purposes of determining the amount of calculating the Gross-Up Payment, the Executive shall it will be deemed to (1) pay applicable federal income taxes assumed that all taxable Retention Payments you receive are taxed at the highest applicable marginal rates of federal income taxation for tax rate and the calendar year highest state income tax rate in which you reside, but without regard to any reduction in personal exemptions or deductions associated with your level of income. All determinations required to be made under this paragraph 12, including whether an excise tax is payable by you and the amount of such excise tax and any Gross-Up Payment is to Payment, will be made, (2) pay applicable state and local income taxes at made by a nationally recognized firm of certified public accountants selected by the highest applicable marginal rate of taxation for the calendar year Company in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income. The payment of a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon the Executive's termination of employment or the receipt of severance benefits under this Agreementits sole discretion.

Gross-Up Payment. (a) Anything in this Agreement If Associate becomes entitled to the contrary notwithstanding, payments in the event it shall be determined that any paymentnature of compensation, distribution or acceleration of including without limitation the Earned Severance Benefit, all salaries, bonuses, severance pay, fringe benefits and the accelerated vesting of options or other equity-based compensation that constitute a "parachute payment" under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or any award or benefit by successor statute then in effect (collectively, the "Aggregate Change of Control Payments"), then the Company or its Subsidiaries to or for shall pay an additional amount (the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration pursuant to the terms of this Agreement or otherwise) (a "Gross-Up Payment") would to Associate at the time specified in the following paragraph. The Gross-Up Payment shall be subject equal to the amount necessary so that the net amount of the Aggregate Change of Control Payments retained by Associate, after subtracting the parachute excise tax imposed by Section 4999 of the Code, as amended, or any interest or penalties are incurred by the Executive with respect to such excise tax successor statute then in effect (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 an additional payment (a "Gross-Up Payment") in an amount such that and after payment by the Executive of also subtracting all taxes (including any interest federal, state or penalties imposed with respect to such taxes) imposed upon local income tax, FICA tax and Excise Tax on the Gross-Up Payment, the Executive retains an amount shall be equal to the sum net amount of (i) the Aggregate Change in Control Payments that Associate would have retained if no Excise Tax has been imposed upon the Payments and (ii) the product of any deductions disallowed because of the inclusion no Gross-Up Payment had been paid. The amount of the Gross-Up Payment shall be determined in good faith by independent accountants or tax counsel selected by the Executive's adjusted gross income for Company and acceptable to Associate, who shall apply the following assumptions: (i) Associate shall be treated as paying federal income tax purposes and taxes at the highest applicable marginal rate of federal income taxation for in the calendar year in which the Gross-Up Payment is made, and (ii) Associate shall be treated as paying state and local income taxes at the highest marginal rate(s) in the calendar year in which the Gross-Up Payment is made in the locality of Associate's residence as of the Termination Date, net of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within twenty business days after the effective date of Associate's termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Associate within that time an estimate, determined in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but in no event later than the 60th day after the effective date of Associate's termination or resignation. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be maderepaid by Associate within five business days after written demand. For purposes of If the actual Excise Tax imposed is more than the amount that was taken into account in determining the amount of the Gross-Up Payment, the Executive Company shall be deemed to make an additional gross-up payment in respect of such excess (1) pay applicable federal income taxes plus interest at the highest applicable marginal rates rate provided in Section 1274(b)(2)(B) of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, (2Code) pay applicable state and local income taxes at the highest applicable marginal rate of taxation for time that the calendar year in which the Gross-Up Payment is to be made, net amount of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income. The payment of a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon the Executive's termination of employment or the receipt of severance benefits under this Agreementexcess is finally determined."

Gross-Up Payment. (a) Anything in this Agreement Notwithstanding anything herein to the contrary notwithstandingcontrary, in the event it shall be determined that any payment, distribution or acceleration of vesting of any award or benefit by the Company or its Subsidiaries payments to or for the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration pursuant to the terms of this Agreement or otherwise) under any other agreement, plan or arrangement of the Company (a the "PaymentChange in Control Payments") would be become subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by the Executive with respect to such excise tax Code (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then the Company shall pay to the Executive shall be entitled to receive at the time specified below, an additional payment cash amount (a the "Gross-Up Payment") in an amount such that after payment the net amount retained by the Executive after deduction of all taxes (including any interest or penalties imposed with respect to such taxes) imposed Excise Tax on the Change in Control Payments and any federal, state and local income tax and Excise Tax upon the Gross-Up Paymentpayment provided by this paragraph, the Executive retains an amount shall be equal to the sum Change in Control Payments. For purposes of (i) determining whether any of the Change in Control Payments will be subject to the Excise Tax imposed upon and the Payments amount of such Excise Tax, (a) any other payments or benefits received or to be received by the Executive in connection with a Change in Control of the Company or U.S. Home Corporation shall be treated as "parachute payments" within the meaning of Section 280G of the Code, and all "excess parachute payments" within the meaning of such Section 280G shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company's independent auditors and acceptable to the Executive, such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G of the Code, and (iib) the product value of any deductions disallowed because non-cash benefits or any deferred payment or benefits shall be determined by such independent auditors in accordance with the principles of Section 280G of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madeCode. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (1) pay applicable federal income taxes at the highest applicable marginal rates rate of federal income taxation for in the calendar year in which the Gross-Up Payment is to be made, (2) pay applicable made and state and local income taxes at the highest applicable marginal rate rates of taxation for in the calendar year in which state and locality of his residence on the Gross-Up Payment is to be made, date of his termination of employment net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and taxes. 18 (3) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income. The payment of a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon the Executive's termination of employment or the receipt of severance benefits under this Agreement.b)

Gross-Up Payment. (a) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any payment, distribution or acceleration of vesting of any award payment or benefit ----------------- received or to be received by the Executive in connection with a Change in Control of the Company or its Subsidiaries to or for the benefit termination of the Executive (Executive's employment, whether paid such payments or payable, distributed or distributable or accelerated or subject to acceleration benefits are received pursuant to the terms of this Agreement or otherwise) any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control of the Company or any person affiliated with the Company or such person (a all such payments 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 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 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") in an amount such that after payment by as may be necessary to place the Executive in the same after-tax position as if no portion of all taxes (including any interest or penalties imposed with respect the Total Payments had been subject to such taxes) imposed upon the Gross-Up PaymentExcise Tax. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive retains an amount equal shall repay to the sum Company, at the time that the amount of (i) the such reduction in Excise Tax imposed upon is finally determined, the Payments and (ii) the product of any deductions disallowed because of the inclusion portion of the Gross-Up Payment in attributable to the Executive's adjusted gross income for federal income tax purposes and the highest applicable marginal rate reduction (plus that portion of federal income taxation for the calendar year in which the Gross-Up Payment is attributable to be made. For purposes of determining 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 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 of which cannot be determined at the time of the Gross-Up Payment, the Executive Company shall be deemed to (1) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, (2) pay 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 deduction of such state and local taxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties =============================================================================== 12 or additions payable by the Executive's adjusted gross income. The payment Executive with respect of a Gross-Up Payment under this Section 3(asuch excess) shall in no event be conditioned upon at the Executive's termination time that the amount of employment or the receipt of severance benefits under this Agreement.such excess if finally

Gross-Up Payment. (a) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any payment, distribution or acceleration of vesting of any award or benefit by the Company or its Subsidiaries to or for the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration payment pursuant to the terms of this Agreement agreement or otherwise) (a "Payment") would any other agreement will be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986 (“Code, ”) or any interest successor or penalties are incurred by similar provision, the Company shall pay 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 the Executive shall be entitled to receive an additional payment amount (a "the “Gross-Up Payment"”) in an amount such that the net amount retained by Executive after payment by the Executive deduction of all taxes any Excise Tax on such payments (including excluding payments pursuant to this paragraph 9), and after deduction for any interest or penalties imposed with respect to such taxes) imposed federal, state and local income tax and Excise Tax upon the Gross-Up Paymentpayment provided for by this paragraph, the Executive retains an amount shall be equal to the sum amount of such payments (iexcluding payments pursuant to this paragraph 9) before payment of any Excise Tax (hereinafter the “Excise Tax Compensation Net Payment”). For purposes of determining whether any of such payments will be subject to the Excise Tax imposed upon and the Payments and (ii) amount of such Excise Tax, any payments or benefits received or to be received by Executive in connection with a Change of Control or Executive’s termination of employment shall be treated as “parachute payments” within the product meaning of any deductions disallowed because Section 280G of the inclusion Code, and all “excess parachute payments” within the meaning of Section 280G of the Gross-Up Payment Code shall be treated as subject to the Excise Tax, unless in the Executive's adjusted gross income for federal income opinion of tax purposes counsel selected by the Company’s independent auditors and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is acceptable to be madeExecutive such payments or benefits do not constitute parachute payments or excess parachute payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (1) pay applicable all federal income taxes at the highest applicable marginal rates rate of federal income taxation for in the calendar year in which the Gross-Up Payment is to be made, (2) pay applicable made and state and local income taxes at the highest applicable marginal rate rates of taxation for in the calendar year state and locality in which Executive is taxed on the payments giving rise to the Gross-Up Payment is to be madePayment, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, an amount necessary so that the total payments hereunder equal the Excise Tax Compensation Net Payment, plus interest on the amount of such repayment at a rate equivalent to the rate described in Section 280G (3d) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because (4) of the inclusion Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-Up Payment shall be paid not later than the date on which the payments giving rise to the Gross-Up Payment in are made, or, if and to the Executive's adjusted gross income. The extent such payment is not known or calculable as of a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon such date, as soon as the Executive's termination of employment or the receipt of severance benefits under this Agreementamount is known and calculable.

Gross-Up Payment. (a) Anything in this Agreement to To the contrary notwithstanding, in extent that (i) the event it shall be determined that any payment, distribution or acceleration of vesting payment of any award Severance Payment, (ii) vesting under the grant of any stock grant or option provided under Section 6 hereof, or (iii) the payment of any other benefit by within the Company or its Subsidiaries to or for the benefit meaning of Section 280G of the Executive Internal Revenue Code of 1986, as amended (whether paid or payablethe “Code”) under any other agreement (collectively, distributed or distributable or accelerated or subject to acceleration pursuant to the terms of this Agreement or otherwise) (a "Payment"“Payments”) would be subject to the excise tax result in any taxes being imposed by against Executive under Section 4999 of the CodeCode (the “Excise Tax”), or or, to the extent that the reimbursement of the Disputed Commission under Section 9(b) hereof would result in any taxes being imposed against Executive under the Code (together with the Excise Tax, “Taxes”), then the Company shall pay, and Executive will be entitled to receive, a payment (the “Gross-Up Payment”) in an amount equal to such Taxes, plus an amount as shall be required to hold Executive harmless from any tax liability relating to the payment of such Gross-Up Payment. To the extent Executive incurs any interest or penalties are incurred by the Executive with respect to such excise tax Taxes (such excise tax, together with any such other than interest and penaltiespenalties due to Executive’s failure to timely make any applicable election, are hereinafter collectively referred to as file a tax return or pay taxes shown on his return) (the "Excise Tax"“Expenses”), then the Company shall reimburse Executive for such Expenses within five (5) days after Executive incurs such Expenses. This reimbursement obligation shall be entitled remain in effect during the applicable statute of limitations applicable to receive an additional payment (a "Gross-Up Payment") in an amount any such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes) imposed upon the Gross-Up PaymentExpenses, the Executive retains an amount equal to the sum of (i) the Excise Tax imposed upon the Payments and (ii) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of Expenses eligible for reimbursement during any taxable year of Executive will not affect the Gross-Up Paymentamount of Expenses eligible for reimbursement in any other taxable year of Executive. This right to reimbursement is not subject to liquidation or exchange for another benefit. To the extent the reimbursement by the Company of any Expenses is taxable to Executive, the Executive such taxable amount shall be deemed subject to (1) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, (2) pay 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 deduction of such state and local taxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income. The payment of a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon by the Executive's termination of employment or the receipt of severance benefits under this AgreementCompany as provided herein.

Gross-Up Payment. (a) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be is determined that any payment, payment (other than the Gross-Up Payments provided for herein) or distribution or acceleration of vesting of any award or benefit by the Company or any of its Subsidiaries affiliates to or for the benefit of the Executive (your benefit, whether paid or payable, payable or distributed or distributable or accelerated or subject to acceleration pursuant to the terms of this Agreement or otherwise) otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, or the lapse or termination of any restriction on, or 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, ") (or any 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 hereafter collectively referred to as the "Excise Tax"), then the Executive shall you will be entitled to receive an additional payment or payments (a "Gross-Up Payment") in an amount such that that, after payment by the Executive you of all taxes (including any interest or penalties imposed with respect to such taxes) ), including any Excise Tax, imposed upon the Gross-Up Payment, the Executive retains you retain an amount of the Gross-Up Payment equal to the sum of (i) the Excise Tax imposed upon the Payments and Payments. Such amounts shall be paid by the Company to you within ten (ii10) the product days after payment by you of any deductions disallowed because of the inclusion of the Gross-Up Payment taxes described in the Executive's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madeprior sentence. For purposes of determining the amount of calculating the Gross-Up Payment, the Executive shall it will be deemed to (1) pay applicable federal income taxes assumed that all taxable payments you receive are taxed at the highest applicable marginal rates of federal income taxation for tax rate and the calendar year highest state income tax rate in the state in which you reside, but without regard to any reduction in personal exemptions or deductions associated with your level of income. All determinations required to be made under this paragraph 17, including whether an excise tax is payable by you and the amount of such excise tax and any Gross-Up Payment Payment, will be made by a nationally recognized firm of certified public accountants selected by the Company in its sole discretion, provided, however, that if the Internal Revenue Service determines that an Excise Tax is owing by you, such determination shall be conclusive and binding on the Company, unless the Company elects to be madeengage at its sole expense such an accounting firm to contest such determination, (2) pay applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which case the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction final resolution of such state contest shall be conclusive and local taxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of binding on the inclusion of the Gross-Up Payment in the Executive's adjusted gross income. The payment of a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon the Executive's termination of employment or the receipt of severance benefits under this AgreementCompany.

Gross-Up Payment. (a) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any payment, distribution payment received by you or acceleration of vesting of any award or benefit paid by the Company or its Subsidiaries to or for the benefit on behalf of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration pursuant to the terms of you under this Agreement or otherwise) under any other plan, arrangement or agreement with the Company or any person whose actions result in a Change in Control (a collectively, the "PaymentTotal Payments") would will be subject to the excise tax imposed by Section 4999 of 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 the "Excise Tax") imposed by section 4999 (or any successor provision) of the Internal Revenue Code of 1986, as amended (the "Code"), then the Executive Company shall be entitled pay to receive you an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by you, after payment by deduction of any Excise Tax on the Executive of all Total Payments and on any federal, state and local income, excise and/or other taxes (including any interest or penalties imposed with respect to such taxes) imposed upon the Gross-Up PaymentPayment provided for by this Section 6, the Executive retains an amount shall be equal to the sum Total Payments. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) the Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax imposed upon Tax, unless in the Payments written opinion of tax counsel selected by the Company's independent auditors such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (ii) the product value of any deductions disallowed because non-cash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madeCode. For purposes of determining the amount of the Gross-Up Payment, the Executive you shall be deemed to (1) pay applicable federal income and other taxes at the highest applicable marginal rates rate of federal income taxation for in the calendar year in which the Gross-Up Payment is to be made, (2) pay applicable made and state and local income and other taxes at the highest applicable marginal rate of taxation for in the calendar year in which state and locality of your residence on the date the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (3) have otherwise allowable deductions for federal income tax purposes any other taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, you shall repay to the Company, at least equal to those which could be disallowed because the time that the amount of such reduction in Excise Tax is finally determined or upon your receipt of a refund from the taxing authorities of the inclusion amount attributable to the reduction in the excise tax, whichever is later, the portion of the Gross-Up Payment in attributable to such reduction (plus that portion of the Executive's adjusted gross income. The payment of a Gross-Up Payment attributable to the Excise Tax and federal, state and local income and other taxes imposed on the Gross-Up Payment being repaid by you 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 determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by you with respect to such excess) at the time that the amount of such excess is finally determined. You and the Company shall each reasonably cooperate with the other in connection with any administration or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. The Gross-Up Payment payable pursuant to this subsection shall be payable on the earlier of (i) the date the Company is required to withhold the Excise Tax pursuant to Section 4999 of the Code, or (ii) the date you are required to pay the Excise Tax. You shall notify the Company of any audit or review by the Internal Revenue Service of your federal income tax return for the year in which a payment under this Section 3(aAgreement is made within ten (10) shall in no event be conditioned upon the Executive's termination days of employment or the your receipt of severance benefits under this Agreementsuch audit or review. In addition, you shall notify the Company of the final resolution of such audit or review within ten (10) days of such resolution.

Gross-Up Payment. (a) Anything in this Agreement to If the contrary notwithstanding, in the event it shall be determined Internal Revenue Service asserts that any payment, distribution or acceleration of vesting portion of any award or benefit by the Company or its Subsidiaries payment made to or for the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration Employee pursuant to the terms any provision of this Agreement or otherwise) (a "Payment") would be subject to the excise tax imposed by Section 4999 of 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 constitutes an Excess Parachute Payment and penalties, are hereinafter collectively referred to as the "imposes an Excise Tax")Tax thereon, then the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") Company agrees that it will indemnify and hold harmless Employee in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes) imposed upon the Gross-Up Payment, the Executive retains an amount equal to the sum of (i) such Excise Tax. Such amount shall be paid to Employee immediately pending a final judicial determination of, or settlement determining, such liability for the Excise Tax imposed upon otherwise. In addition, the Payments and (ii) the product of any deductions disallowed because of the inclusion of the Company shall pay a Gross-Up Payment to Employee or his estate in the Executive's adjusted gross income for federal amount of any Excise Tax incurred by Employee or his estate as a result of any severance compensation, accelerated exercisability of options, accelerated vesting of restricted shares and/or continuation of benefits under this Section 6, plus an amount equal to any federal, state or local income tax purposes and imposed on Employee as the highest result of the Company's payment of any such Excise Tax amount. Such Gross-Up Payment shall be payable to Employee at the time the respective applicable marginal rate of federal income taxation for the calendar year in which the tax triggering such Gross-Up Payment is to be madedue. For purposes of determining the amount of the Gross-Up Payment, the Executive shall Employee will be deemed to (1i) pay applicable federal income taxes at the highest applicable marginal rates rate of federal income taxation for in the calendar year in which the Gross-Up Payment is to be made, and (2ii) pay applicable state and local income taxes at the highest applicable marginal rate rates of taxation for in the state and locality of his residence in the calendar year in which the Gross-Up Payment is to be mademade net, net in the case of clause (i), of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal taxes. The parties agree that the payments required to those which could be disallowed because of made under this Section 6 are such that the inclusion of the payments Employee receives, or is entitled to receive, under this Section 6 shall not be reduced by any Excise Tax or Gross-Up Payment in with respect thereto and therefore the Executive's adjusted gross income. The net amount retained by Employee, after reimbursement for any Excise Tax, or any other federal, state or local income or other tax that may be payable on receipt of such reimbursement for Excise Tax, that is imposed as a result of any payment of a Gross-Up Payment required to be made under this Section 3(a6 shall be equal to the same amount as if no such Excise Tax or other tax had been imposed. All other rights and obligations of the Company and Employee under this Agreement (other than Sections 8, 9 and 10, which shall survive termination) shall in no event be conditioned upon cease as of the Executive's termination of employment or the receipt of severance benefits under this AgreementTermination Date.

Gross-Up Payment. (a) Anything in this Agreement Notwithstanding anything else to the contrary notwithstandingcontrary, in the event it shall be determined that any payment, distribution distribution, benefit or acceleration of vesting of any award entitlement made or benefit provided by the Company (including any of its subsidiaries or its Subsidiaries affiliates) to or for the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration pursuant to the terms of this Agreement or otherwise) otherwise (a "“Base Payment"”) would be subject to the excise tax imposed by Section 4999 of the Code or similar excise tax (excluding, for the sake of clarity, any additional tax imposed under Section 409A of the Code) that may hereafter be imposed, or together with any interest or penalties are incurred by the Executive with respect to any such excise tax (any such excise and other similar tax, together with any such interest and penalties, are hereinafter collectively referred to as the "“Excise Tax"”), then the Company shall pay to the Executive shall be entitled to receive an additional payment (a "the “Gross-Up Payment"”) in an amount such that the net amount retained by him, after payment by the Executive calculation and deduction of all taxes (including any Excise Tax on the Base Payment and interest or and penalties imposed with respect to such taxes) thereto and any federal, state, and local income taxes and interest and penalties imposed upon with respect thereto and Excise Tax on the Gross-Up Payment, the Executive retains an amount shall be equal to the sum of (i) the Excise Tax imposed upon the Payments and (ii) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madeBase Payment. For purposes of In determining this amount, the amount of the Gross-Up Payment, the Executive shall be deemed Payment attributable to (1) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to shall be made, (2) pay 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 reduced by the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (3) have otherwise allowable deductions for that is obtainable by the Executive on his federal income tax purposes at least equal to those which could be disallowed because return by the deduction of the inclusion portion of the Gross-Up Payment in attributable to state and local income taxes. Additionally, the Gross-Up Payment shall be reduced by income or excise tax withholding payments made by the Company to any federal, state, or local taxing authority with respect to the Gross-Up Payment that were not deducted from compensation payable to the Executive's adjusted gross income. The payment of All determinations required to be made under this Section 7, including whether and when a Gross-Up Payment under this Section 3(ais required, the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determination, except as specified above, shall be made by a national accounting firm reasonably selected by the Board (other than the Company’s independent auditor or an accounting firm that advised a party (other than the Company) with respect to any transaction related to the Change in Control or serves as the independent auditor for any such party) (the “Accounting Firm”), which shall in no event be conditioned upon provide detailed supporting calculations both to the Executive's termination of employment or Company and the Executive within fifteen (15) business days after the receipt of severance benefits under this Agreementnotice from the Executive that there should be a Gross-Up Payment. The determination of tax liability made by the Accounting Firm shall be subject to review by the Executive’s tax advisor, and if said tax advisor does not agree with the determination reached by the Accounting Firm, then the Accounting Firm and said tax advisor shall jointly designate a nationally recognized public accounting firm, which shall make the determination. All fees and expenses of the accountants and tax advisors retained by either the Executive or the Company shall be borne by the Company. Any Gross-Up Payment shall be paid by the Company to the Executive within five days after the receipt of the determination. Any determination by a jointly designated public accounting firm shall be binding upon the Company and the Executive. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination hereunder, it is possible that Gross-Up Payments shall not have been made by the Company that should have been made consistent with the calculations required to be made hereunder (“Underpayment”). In the event that the Executive thereafter is required to make a payment of any Excise Tax, any such Underpayment, together with any interest and penalties owed by the Executive, shall be promptly paid by the Company to or for the benefit of the Executive. In the event that the Gross-Up Payment exceeds the amount subsequently determined to be due and the Executive is refunded an amount of the Gross-Up Payment by the Internal Revenue Service, such refund shall be payable by the Executive to the Company (together with any interest paid or credited thereon after taxes applicable thereto) within five business days of its receipt by the Executive.

Gross-Up Payment. (a) Anything in If the aggregate of all payments or benefits made or provided to Employee under this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or acceleration and under all other plans and programs of vesting of any award or benefit by the Company or its Subsidiaries (the “Aggregate Payment”) is determined to constitute a “parachute payment,” as such term is defined in Section 280G(b)(2) of the Code, the Company shall pay to Employee, prior to or for coincident with the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration pursuant to the terms of this Agreement or otherwise) (a "Payment") would be subject to the time any excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Code (the Executive “Excise Tax”) is payable with respect to such Aggregate Payment, an additional amount that, after the imposition of all penalties, income, excise tax (such excise taxand other federal, together with any such state and local taxes thereon, is equal to the sum of the Excise Tax on the Aggregate Payment and interest and penalties, are hereinafter collectively referred to 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 interest or penalties imposed with respect to the Excise Tax and such taxes) imposed upon additional amount (the “Gross-Up Payment”). For example, the Executive retains an amount equal to the sum of (i) if the Excise Tax imposed upon with respect to the Payments Aggregate Payment equals $1,000,000, and (ii) the product of any deductions disallowed because of the inclusion of all penalties, income, excise and other federal, state and local taxes on the Gross-Up Payment in the Executive's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which equal $2,333,333, the Gross-Up Payment is will be $3,333,333. The determination of whether the Aggregate Payment constitutes a parachute payment and, if so, the amount to be madepaid to Employee and the time of payment pursuant to this Section 6 shall be made by an independent auditor (the “Auditor”) selected and paid by the Company and reasonably acceptable to Employee. The Auditor shall be a nationally recognized United States public accounting firm. For purposes of determining the amount of the Gross-Up Payment, the Executive Employee shall be deemed to (1) pay applicable federal income taxes tax at the highest applicable marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be madefederal, (2) pay applicable state and local income taxes at the highest applicable marginal rate of taxation for in 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 deduction of such state and local taxes and taxes. In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Employee shall repay to the Company, within five (35) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because business days following the time that the amount of such reduction in the inclusion Excise Tax is finally determined, the portion of the Gross-Up Payment in attributable to such reduction plus that portion of the Executive's adjusted gross income. The payment of a Gross-Up Payment under this Section 3(aattributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Employee, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in Employee’s taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the payment of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in no event respect of such excess (plus any interest, penalties or additions payable by Employee with respect to such excess) within five (5) business days following the time that the amount of such excess is finally determined. Employee and the Company shall cooperate with each other in connection with any proceeding or claim relating to the existence or amount of liability for Excise Tax, and all expenses incurred by Employee in connection therewith shall be conditioned paid by the Company promptly upon the Executive's termination notice of employment or the receipt of severance benefits under this Agreementdemand from Employee.

Gross-Up Payment. (a) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any payment, distribution or acceleration of vesting of any award or benefit by the Company or its Subsidiaries to or for the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration payment pursuant to the terms of this Agreement agreement or otherwise) (a "Payment") would any other agreement will be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986 ("Code, ") or any interest successor or penalties are incurred by similar provision, the 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 the Executive Company shall be entitled to receive pay you an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by you after payment by the Executive deduction of all taxes any Excise Tax on such payments (including excluding payments pursuant to this paragraph 9), and after deduction for any interest or penalties imposed with respect to such taxes) imposed federal, state and local income tax and Excise Tax upon the Gross-Up Paymentpayment provided for by this paragraph, the Executive retains an amount shall be equal to the sum amount of such payments (iexcluding payments pursuant to this paragraph 9) before payment of any Excise Tax (hereinafter the "Excise Tax Compensation Net Payment"). For purposes of determining whether any of such payments will be subject to the Excise Tax imposed upon and the Payments and (ii) amount of such Excise Tax, any payments or benefits received or to be received by you in connection with a Change of Control or your termination of employment shall be treated as "parachute payments" within the product meaning of any deductions disallowed because Section 280G of the inclusion Code, and all "excess parachute payments" within the meaning of Section 280G of the Gross-Up Payment Code shall be treated as subject to the Excise Tax, unless in the Executiveopinion of tax counsel selected by the Company's adjusted gross income for federal income tax purposes independent auditors and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is acceptable to be madeyou such payments or benefits do not constitute parachute payments or excess parachute payments. For purposes of determining the amount of the Gross-Up Payment, the Executive you shall be deemed to (1) pay applicable all federal income taxes at the highest applicable marginal rates rate of federal income taxation for in the calendar year in which the Gross-Up Payment is to be made, (2) pay applicable made and state and local income taxes at the highest applicable marginal rate rates of taxation for in the calendar year in which state and locality of your residence on the Gross-Up Payment is to be madeEntitlement Date, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the Entitlement Date, you shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, an amount necessary so that the total payments hereunder equal the Excise Tax Compensation Net Payment, plus interest on the amount of such repayment at a rate equivalent to the rate described in Section 280G (3d) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because (4) of the inclusion of Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the Entitlement Date, the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable with respect to such excess) at the Executive's adjusted gross incometime that the amount of such excess is finally determined. The payment of a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon paid not later than the Executive's termination fifteenth day following the Entitlement Date, or, if and to the extent such payment is not known or calculable as of employment or such date, as soon as the receipt of severance benefits under this Agreementamount is known and calculable.

Gross-Up Payment. (ai) Anything in this Agreement to the contrary or any termination of the Options notwithstanding, in the event it shall be determined that any payment, payment or distribution or acceleration of vesting of any award benefit received or benefit to be received by the Company or its Subsidiaries to or for the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration Participant pursuant to the terms of this Agreement or otherwise) any other payment or distribution or benefit made or provided by the Company, or any of its subsidiaries and affiliates, to or for the benefit of the Participant (whether pursuant to this Agreement or otherwise and determined without regard to any additional payments required under this Section 8) (a "Payment") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code, ") or any interest or penalties are incurred by the Executive Participant with respect to such excise tax (such excise tax, together with any such interest and penalties, are is hereinafter collectively referred to as the "Excise Tax"), then the Executive Participant shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive Participant of all taxes (including any interest or penalties imposed with respect to such taxes), 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, the Executive Participant retains an amount of the Gross-Up Payment equal to the sum of (ix) the Excise Tax imposed upon the Payments and (iiy) the product of any deductions actually disallowed because under Section 68 of the Code solely as a direct result of the inclusion of the Gross-Up Payment in the ExecutiveParticipant's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive Participant shall be deemed to (1i) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, made and (2ii) pay 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 deduction of such state and local taxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income. The payment of a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon the Executive's termination of employment or the receipt of severance benefits under this Agreementtaxes.

Gross-Up Payment. (a) Anything in this Agreement to the contrary notwithstanding, in the event If it shall be determined that any payment, payment or distribution or acceleration of vesting of any award or benefit by the Company or its Subsidiaries to or for the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration pursuant to the terms of this Agreement or otherwise) (a "Base Payment") would be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the CodeInternal Revenue Code of 1986, or any interest or penalties are incurred by the Executive with respect to such excise tax as amended (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise TaxCode"), then the Executive shall be entitled to receive an additional payment (a the "Gross-Up Payment") in an amount such that the net amount retained by him, after payment by the Executive calculation and deduction of all any Excise Tax on the Base Payment and any federal, state, and local income taxes (including any interest or penalties imposed with respect to such taxes) imposed upon and Excise Tax on the Gross-Up Payment, the Executive retains an amount shall be equal to the sum of (i) the Excise Tax imposed upon the Payments and (ii) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madeBase Payment. For purposes of In determining this amount, the amount of the Gross-Up Payment, the Executive shall be deemed Payment attributable to (1) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to shall be made, (2) pay 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 reduced by the maximum reduction in federal income taxes which that could be obtained from by the deduction of such state and local taxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion portion of the Gross-Up Payment in attributable to state and local income taxes. Additionally, the Gross-Up Payment shall be reduced by income or excise tax withholding payments made by the Company to any federal, state, or local taxing authority with respect to the Gross-Up Payment that were not deducted from compensation payable to the Executive's adjusted gross income. The payment of All determinations required to be made under this Section 7, including whether and when a Gross-Up Payment under this Section 3(a) is required, the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determination, except as specified above, shall in no event be conditioned upon made by the Company's independent auditor (the "Accounting Firm"), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen business days after the receipt of notice from the Executive that there should be a Gross-Up Payment. The determination of tax liability made by the Accounting Firm shall be subject to review by the Executive's termination tax advisor, and if said tax advisor does not agree with the determination reached by the Accounting Firm, then the Accounting Firm and said tax advisor shall jointly designate a nationally recognized public accounting firm, which shall make the determination. All fees and expenses of employment the accountants and tax advisors retained by either the Executive or the Company shall be borne by the Company. Any Gross-Up Payment shall be paid by the Company to the Executive within five days after the receipt of severance benefits under this Agreementthe determination. Any determination by a jointly designated public accounting firm shall be binding upon the Company and the Executive. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination hereunder, it is possible that Gross-Up Payments shall not have been made by the Company that should have been made consistent with the calculations required to be made hereunder ("Underpayment"). In the event that the Executive thereafter is required to make a payment of any Excise Tax, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive. In the event that the Gross-Up Payment exceeds the amount subsequently determined to be due, such excess shall constitute a loan from the Company payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code).

Gross-Up Payment. (a) Anything in this Agreement to the contrary notwithstanding, in In the event that it shall be determined that any payment, award, benefit or distribution (or any acceleration of vesting of any award payment, award, benefit or benefit distribution) by the Company Corporation (or any of its Subsidiaries affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) to or for the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 17.4) (a the "PaymentPayments") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (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 the "Excise Tax"), then the Corporation shall pay to 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 interest or penalties imposed with respect to such taxesExcise Tax) imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the sum of (ix) the Excise Tax imposed upon the Payments and (iiy) the product of any deductions disallowed because of the inclusion of the Gross-Up up Payment in the Executive's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (1i) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, (2ii) pay applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (3iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up up Payment in the Executive's adjusted gross income. The payment Notwithstanding the foregoing provisions of this Section 17.4, if it shall be determined that Executive is entitled to a Gross-Up Payment Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 10 percent of the portion of the Payments that would be treated as "parachute payments" under Section 280G of the Code, then the amounts payable to Executive under this Section 3(aAgreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 16.1 and 17.2, unless an alternative method of reduction is elected by Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no event be conditioned upon the Executive's termination of employment or the receipt of severance benefits amounts payable under this AgreementAgreement shall be reduced pursuant to this provision.

Gross-Up Payment. (a) Anything in If the aggregate of all payments or benefits made or provided to Employee under this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or acceleration and under all other plans and programs of vesting of any award or benefit by the Company or its Subsidiaries (the “Aggregate Payment”) is determined to constitute a “parachute payment,” as such term is defined in Section 280G(b)(2) of the Code, the Company shall pay to Employee, prior to or for coincident with the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration pursuant to the terms of this Agreement or otherwise) (a "Payment") would be subject to the time any excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Code (the Executive “Excise Tax”) is payable with respect to such Aggregate Payment, an additional amount that, after the imposition of all penalties, income, excise tax (such excise taxand other federal, together with any such state and local taxes thereon, is equal to the sum of the Excise Tax on the Aggregate Payment and interest and penalties, are hereinafter collectively referred to 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 interest or penalties imposed with respect to the Excise Tax and such taxes) imposed upon additional amount (the “Gross-Up Payment”). For example, the Executive retains an amount equal to the sum of (i) if the Excise Tax imposed upon with respect to the Payments Aggregate Payment equals $1,000,000, and (ii) the product of any deductions disallowed because of the inclusion of all penalties, income, excise and other federal, state and local taxes on the Gross-Up Payment in the Executive's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which equal $2,333,333, the Gross-Up Payment is will be $3,333,333. The determination of whether the Aggregate Payment constitutes a parachute payment and, if so, the amount to be madepaid to Employee and the time of payment pursuant to this Section 6 shall be made by an independent auditor (the “Auditor”) selected and paid by the Company and reasonably acceptable to Employee. The Auditor shall be a nationally recognized United States public accounting firm. For purposes of determining the amount of the Gross-Up Payment, the Executive Employee shall be deemed to (1) pay applicable federal income taxes tax at the highest applicable marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be madefederal, (2) pay applicable state and local income taxes at the highest applicable marginal rate of taxation for in 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 deduction of such state and local taxes and taxes. In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Employee shall repay to the Company, within five (35) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because business days following the time that the amount of such reduction in the inclusion Excise Tax is finally determined, the portion of the Gross-Up Payment in attributable to such reduction plus that portion of the Executive's adjusted gross income. The payment of a Gross-Up Payment under attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Employee, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in Employee’s taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the payment 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 Employee with respect to such excess) within five (5) business days following the time that the amount of such excess is finally determined. Employee and the Company shall cooperate with each other in connection with any proceeding or claim relating to the existence or amount of liability for Excise Tax, and all expenses incurred by Employee in connection therewith shall be paid by the Company promptly upon notice of demand from Employee. Any payments made by the Company to or on behalf of Employee pursuant to this Section 3(a) 6 shall be made in no event be conditioned upon later than the Executive's termination end of employment or Employee’s taxable year next following Employee’s taxable year in which the receipt of severance benefits under this Agreementrelated taxes are remitted.

Gross-Up Payment. (a) Anything in this Agreement to If the contrary notwithstanding, in the event it shall be determined Internal Revenue Service asserts that any payment, distribution or acceleration of vesting portion of any award or benefit by the Company or its Subsidiaries payment made to or for the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration Employee pursuant to the terms any provision of this Agreement or otherwise) (a "Payment") would be subject to the excise tax imposed by Section 4999 of 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 constitutes an Excess Parachute Payment and penalties, are hereinafter collectively referred to as the "imposes an Excise Tax")Tax thereon, then the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") Company agrees that it will indemnify and hold harmless Employee in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes) imposed upon the Gross-Up Payment, the Executive retains an amount equal to the sum of (i) such Excise Tax. Such amount shall be paid to Employee immediately pending a final judicial determination of, or settlement determining, such liability for the Excise Tax imposed upon otherwise. In addition, the Payments and (ii) the product of any deductions disallowed because of the inclusion of the Company shall pay a Gross-Up Payment to Employee or his estate in the Executive's adjusted gross income for federal amount of any Excise Tax incurred by Employee as a result of any severance compensation, accelerated exercisability of options, accelerated vesting of restricted shares and/or continuation of benefits under this Section 6, plus an amount equal to any federal, state or local income tax purposes and imposed on Employee as the highest result of the Company's payment of any such Excise Tax amount. Such Gross-Up Payment shall be payable to Employee at the time the respective applicable marginal rate of federal income taxation for the calendar year in which the tax triggering such Gross-Up Payment is to be madedue. For purposes of determining the amount of the Gross-Up Payment, the Executive shall Employee will be deemed to (1i) pay applicable federal income taxes at the highest applicable marginal rates rate of federal income taxation for in the calendar year in which the Gross-Up Payment is to be made, and (2ii) pay applicable state and local income taxes at the highest applicable marginal rate rates of taxation for in the state and locality of his residence in the calendar year in which the Gross-Up Payment is to be mademade net, net in the case of clause (i), of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal taxes. The parties agree that the payments required to those which could be disallowed because of made under this Section 6 are such that the inclusion of the payments Employee receives, or is entitled to receive, under this Section 6 shall not be reduced by any Excise Tax or Gross-Up Payment in with respect thereto and therefore the Executive's adjusted gross income. The net amount retained by Employee, after reimbursement for any Excise Tax, or any other federal, state or local income or other tax that may be payable on receipt of such reimbursement for Excise Tax, that is imposed as a result of any payment of a Gross-Up Payment required to be made under this Section 3(a6 shall be equal to the same amount as if no such Excise Tax or other tax had been imposed. All other rights and obligations of the Company and Employee under this Agreement (other than Sections 8, 9 and 10, which shall survive termination) shall in no event be conditioned upon cease as of the Executive's termination of employment or the receipt of severance benefits under this AgreementTermination Date.

Gross-Up Payment. (ai) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or any acceleration of vesting of any award payment, award, benefit or benefit distribution) by the Company (or any of its Subsidiaries affiliated entities) or any entity which effectuates a Change in Control to or for the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5(c)) (a "Payment"the “Payments”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (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 the "“Excise Tax"”), then the Company shall pay to 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 interest or penalties imposed with respect to such taxesExcise Tax) imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the sum of (ix) the Excise Tax imposed upon the Payments and (iiy) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive's ’s adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (1i) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, (2ii) pay 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 deduction of such state and local taxes and (3iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Executive's ’s adjusted gross income. The payment of a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon the Executive's termination of employment or the receipt of severance benefits under this Agreement.

Gross-Up Payment. In the event that (ai) Anything in the Employee becomes entitled to the payment provided under Section 10.2 of this Agreement (the "Change in Control Payment") and any of the Change in Control Payment will be subject to the contrary notwithstandingtax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision, or (ii) any payments or benefits received or to be received by the Employee pursuant to the terms of any other plan, arrangement or agreement (the "Benefit Payments") will be subject to the Excise Tax, the Company shall pay to the Employee an additional amount (the "Gross-Up Payment") such that the net amount retained by the Employee, after deduction of any Excise Tax on the Change in Control Payment and the event it Benefit Payments, and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 10.3, shall be equal to the Change in Control Payment and the Benefit Payments, provided, however, that in determining the amount of the Gross- Up Payment, any Excise Tax on the Change in Control Payment and the Benefit Payments shall be determined that using a rate no higher than twenty percent (20%). For purposes of determining whether any paymentof the Change in Control Payment or the Benefit Payments will be subject to the Excise Tax and the amount of such Excise Tax, distribution (i) any payments or acceleration benefits received or to be received by the Employee in connection with a change in control of vesting of any award or benefit by the Company or its Subsidiaries to or for the benefit Employee's termination of the Executive employment (whether paid or payable, distributed or distributable or accelerated or subject to acceleration pursuant to the terms of this Agreement or otherwiseany other plan, arrangement or agreement with the Company, any person whose actions result in change in control or any person affiliated with the Company or such persons) (a shall be treated as "Payment"parachute payments" within the meaning of Section 280G(b)(2) would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred and all "excess parachute payments" within the meaning of Section 280G(b)(1) shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of tax counsel selected by the Executive with respect to Board of Directors of the Company, such excise tax payments or benefits (in whole or in part) do not constitute parachute payments, or such excise taxexcess payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code, together with any such interest and penalties, are hereinafter collectively referred to 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 interest or penalties imposed with respect to such taxes) imposed upon the Gross-Up Payment, the Executive retains an amount equal to the sum of (i) the Excise Tax imposed upon the Payments and (ii) the product amount of the Change in Control Payment and the Benefit Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Change in Control Payment and the Benefits Payments or (B) the amount of excess parachute payments within the meaning of Sections 280G(b)(1) and (4) (after applying clause (i), above) and (iii) the value of any deductions disallowed because non-cash benefits or any deferred payment or benefit shall be determined by tax counsel, selected by the Board of Directors of the inclusion Company, in accordance with the principles of Sections 280G(d)(3) and (4) of the Gross-Up Payment in the Executive's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madeCode. For purposes of determining the amount of the Gross-Up Payment, the Executive Employee shall be deemed to (1) pay applicable federal income taxes at the highest applicable marginal rates rate of federal income taxation for in the calendar year in which the Gross-Up Payment is to be made, (2) pay applicable made and state and local income taxes at the highest applicable marginal rate rates of taxation for in the calendar year in which state and locality of the Gross-Up Payment is to be madeEmployee's residence on the date of termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (3) have otherwise allowable deductions for federal income tax purposes taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at least equal to those which could be disallowed because the time of termination of the inclusion Employee's employment, the Employee shall repay to the Company at that time that amount of such reduction in Excise Tax as is finally determined to be the portion of the Gross-Up Payment attributable to such reduction plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the ExecutiveCode. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Employee's adjusted gross income. The employment (including by reason of any payment the existence or amount of a which cannot be determined at the time of the Gross-Up Payment under this Section 3(aPayment), the Company shall make an additional gross-up payment to the Employee in respect of such excess (plus any interest payable with respect to such excess) shall in no event be conditioned upon at the Executive's termination time that the amount of employment or the receipt of severance benefits under this Agreementsuch excess is finally determined.

Gross-Up Payment. (a) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any payment, distribution or acceleration of vesting of any award or benefit by the Company or its Subsidiaries to or for the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration payment pursuant to the terms of this Agreement agreement or otherwise) (a "Payment") would any other agreement will be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986 ("Code, ") or any interest successor or penalties are incurred by similar provision, the 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 the Executive Company shall be entitled to receive pay you an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by you after payment by the Executive deduction of all taxes any Excise Tax on such payments (including excluding payments pursuant to this paragraph 9), and after deduction for any interest or penalties imposed with respect to such taxes) imposed federal, state and local income tax and Excise Tax upon the Gross-Up Paymentpayment provided for by this paragraph, the Executive retains an amount shall be equal to the sum amount of such payments (iexcluding payments pursuant to this paragraph 9) before payment of any Excise Tax (hereinafter the "Excise Tax Compensation Net Payment"). For purposes of determining whether any of such payments will be subject to the Excise Tax imposed upon and the Payments and (ii) amount of such Excise Tax, any payments or benefits received or to be received by you in connection with a Change of Control or your termination of employment shall be treated as "parachute payments" within the product meaning of any deductions disallowed because Section 280G of the inclusion Code, and all "excess parachute payments" within the meaning of Section 280G of the Gross-Up Payment Code shall be treated as subject to the Excise Tax, unless in the Executiveopinion of tax counsel selected by the Company's adjusted gross income for federal income tax purposes independent auditors and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is acceptable to be madeyou such payments or benefits do not constitute parachute payments or excess parachute payments. For purposes of determining the amount of the Gross-Up Payment, the Executive you shall be deemed to (1) pay applicable all federal income taxes at the highest applicable marginal rates rate of federal income taxation for in the calendar year in which the Gross-Up Payment is to be made, (2) pay applicable made and state and local income taxes at the highest applicable marginal rate rates of taxation for in the calendar year in which state and locality of your residence on the Gross-Up Payment is to be madeEntitlement Date, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the Entitlement Date, you shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, an amount necessary so that the total payments hereunder equal the Excise Tax Compensation Net Payment, plus interest on the amount of such repayment at a rate equivalent to the rate described in Section 280G (3d) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because (4) of the inclusion of Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the Entitlement Date, the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable with respect to such excess) at the Executive's adjusted gross incometime that the amount of such excess is finally determined. The payment of a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon paid not later than the Executive's termination fifteenth day following the Entitlement Date, or, if and to the extent such payment is not known or calculable as of employment or such date, as soon as the receipt of severance benefits under this Agreement.amount is known and calculable. 110

Gross-Up Payment. (a) 8.1 Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, payment or distribution or acceleration of vesting of any award or benefit by the Company or its Subsidiaries to or for the benefit of the Executive Employee (whether paid or payable, payable or distributed or distributable or accelerated or subject to acceleration pursuant to the terms of this Agreement or otherwise) , but determined without regard to any additional payments required under this Section 8) (a "Payment") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any interest or penalties are incurred by the Executive Employee 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 the Executive Employee shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive Employee of all taxes (including 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 but before deduction for any federal, state or local income tax upon the Payment, the Executive Employee retains an amount equal to the sum of (ix) the Excise Tax imposed upon the Payments Payment and (iiy) an amount equal to the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the ExecutiveEmployee's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive Employee shall be deemed to (1) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation (including surcharges) for the calendar year in which the Gross-Up Payment is to be made, (2) pay applicable state and local income taxes at the highest applicable marginal rate of taxation (including surcharges) 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 deduction of such state and local taxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the ExecutiveEmployee's adjusted gross income. The payment of a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon the Executive's termination of employment or the receipt of severance benefits under this Agreement.

Gross-Up Payment. (a) Anything In the event that the “Total Payments” made under this Change of Control Agreement or otherwise result in an excise tax being imposed on you pursuant to Section 4999 of the Code, the Corporation will provide you with a “Gross-Up Payment,” calculated in accordance with the provisions of this Section 6. “Total Payments” as used in this Agreement to the contrary notwithstandingSection 6, means any payments in the event it shall be determined that any paymentnature of compensation (as defined in Code Section 280G and the regulations adopted thereunder), distribution made pursuant to this Change of Control Agreement or acceleration of vesting of any award or benefit by the Company or its Subsidiaries otherwise, to or for your benefit, the benefit receipt of which is contingent on a “change in the ownership or effective control” of the Executive Corporation, or a “change in the ownership of a substantial portion of the assets of the Corporation” (whether as these phrases are defined in Code Section 280G and the regulations adopted thereunder) and to which Code Section 280G applies. This Gross-Up Payment will be paid or payable, distributed or distributable or accelerated or subject to acceleration pursuant you as and when payments are made to the terms of this Agreement or otherwise) (a "Payment") would be you which are subject to the excise tax imposed by under Section 4999 4999, and in relation to the excise taxes payable with respect to each such payment, but in no event later than two and one-half months following the end of the taxable year in which the corresponding amount payable as a Gross-Up Payment is no longer subject to a “substantial risk of forfeiture” (as such term is defined for purposes of Section 409A of the Code, or any interest or penalties are incurred by the Executive with respect to ). This lump sum payment will be in such excise tax (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 an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes) imposed upon the Gross-Up Payment, the Executive retains an amount equal to the sum of you have paid (i) the Excise Tax imposed upon the Payments “total presumed federal and state taxes;” and (ii) the product of excise taxes imposed by Code Section 4999 with respect to the Gross-Up Payment (and any deductions disallowed because of the inclusion interest or penalties actually imposed), you retain an amount of the Gross-Up Payment in equal to the Executive's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of remaining excise taxes imposed by Code Section 4999 on your Total Payments (calculated before the Gross-Up Payment, the Executive shall be deemed to (1) pay applicable federal income taxes at the highest applicable marginal rates ). For purposes of federal income taxation for the calendar year in which the calculating your Gross-Up Payment is to be madePayment, (2) pay applicable your actual federal and state and local income taxes at will not be used. Instead, we will use your “total presumed federal and state taxes.” For purposes of this Change of Control Agreement, your “total presumed federal and state taxes” shall be conclusively calculated using a combined tax rate equal to the highest applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net sum of the maximum reduction marginal federal and applicable state income tax rates and the hospital insurance (or “HI”) portion of F.I.C.A. Based on the rates in effect for 2002 for an Arizona resident, the “total presumed federal income taxes which could be obtained from deduction of such and state and local taxes and tax rate” is 45.09% (3) have otherwise allowable deductions for 38.6% federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross incomerate plus 5.04% Arizona state income tax rate plus 1.45% HI tax rate). The payment state tax rate for your actual principal place of residence will be used and no adjustments will be made for the deduction of state taxes on the federal return, any deduction of federal taxes on a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon state return, the Executive's termination loss of employment itemized deductions or the receipt of severance benefits under this Agreementexemptions, or for any other purpose.

Gross-Up Payment. (a) Anything In the event that a Change in this Agreement Control occurs prior to the contrary notwithstanding, in first anniversary of the event Employment Date and it shall be is determined that any payment, award, benefit or distribution (including, without limitation, the acceleration of any payment, award, distribution or acceleration of vesting of any award or benefit benefit), by the Company Company, Block or its Subsidiaries any of their Affiliates to or for the your benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section) (a "“Payment"”) would be subject to the excise tax imposed by Section 4999 of the CodeCode or any corresponding provisions of state or local excise tax law, or any interest or penalties are incurred by the Executive you 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 the Executive you shall be entitled to receive an additional payment (a "“Gross-Up Payment"”) in an amount such that after payment by the Executive you 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) imposed upon , you retain from the Gross-Up Payment, the Executive retains Payment an amount equal to the sum of (i) the Excise Tax imposed upon the Payments and (ii) the product of any deductions disallowed because of the inclusion of the Payments. Any Gross-Up Payment in shall be paid to you (or for your benefit to the Executive's adjusted gross income for federal income tax purposes and extent of the highest Company’s withholding obligation with respect to applicable marginal rate of federal income taxation taxes) no later than the due date for the calendar year in which payment of the Gross-Up Payment is to be madeExcise Tax. For purposes of determining the amount of the Gross-Up Payment, the Executive you shall be deemed to (1) pay applicable federal income tax and employment taxes at the highest applicable marginal rates rate of federal income and employment taxation for in the calendar year in which the Gross-Up Payment is to be made, (2) pay applicable made and state and local income taxes at the highest applicable marginal rate of taxation for in any state and locality to which you are subject to income tax on the calendar year in which date the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could that may be obtained from the deduction of such state and local taxes and taxes. Notwithstanding the foregoing provisions of this Section 7(o)(i), if it is determined that you are entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 280G of the Code does not exceed by more than $100,000 the greatest amount (3the “Safe Harbor Amount”) have otherwise allowable deductions for federal income tax purposes at least equal to those which that could be disallowed because paid to you such that the receipt of Payments would not give rise to any Excise Tax, then the inclusion amount payable under Section 4(d) of this Agreement shall be reduced (but not in excess of $100,000) so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount and no Excise Tax is payable by you. For the avoidance of doubt, only payments under Section 4(d) will be subject to reduction under this Section 7(o)(i), and if the reduction of any such payments by up to $100,000 would not eliminate the Excise Tax, then no such reduction will be made and you will be entitled to the Gross-Up Payment in the Executive's adjusted gross income. The payment of a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon the Executive's termination of employment or the receipt of severance benefits under this AgreementPayment.

Gross-Up Payment. (a) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any payment, distribution or acceleration of vesting of any award or benefit by the Company or its Subsidiaries to or for the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration payment pursuant to the terms of this Letter Agreement or otherwise) (a "Payment") would any other agreement will be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986 ("Code, ") or any interest successor or penalties are incurred by similar provision, the 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 the Executive Company shall be entitled to receive pay you an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by you after payment by the Executive deduction of all taxes any Excise Tax on such payments (including excluding payments pursuant to this paragraph 9), and after deduction for any interest or penalties imposed with respect to such taxes) imposed federal, state and local income tax and Excise Tax upon the Gross-Up Paymentpayment provided for by this paragraph, the Executive retains an amount shall be equal to the sum amount of such payments (iexcluding payments pursuant to this paragraph 9) before payment of any Excise Tax (hereinafter the "Excise Tax Compensation Net Payment"). For purposes of determining whether any of such payments will be subject to the Excise Tax imposed upon and the Payments and (ii) amount of such Excise Tax, any payments or benefits received or to be received by you in connection with a Change of Control or your termination of employment shall be treated as "parachute payments" within the product meaning of any deductions disallowed because Section 280G of the inclusion Code, and all "excess parachute payments" within the meaning of Section 280G of the Gross-Up Payment Code shall be treated as subject to the Excise Tax, unless in the Executiveopinion of tax counsel selected by the Company's adjusted gross income for federal income tax purposes independent auditors and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is acceptable to be madeyou such payments or benefits do not constitute parachute payments or excess parachute payments. For purposes of determining the amount of the Gross-Up Payment, the Executive you shall be deemed to (1) pay applicable all federal income taxes at the highest applicable marginal rates rate of federal income taxation for in the calendar year in which the Gross-Up Payment is to be made, (2) pay applicable made and state and local income taxes at the highest applicable marginal rate rates of taxation for in the calendar year in which state and locality of your residence on the Gross-Up Payment is to be madeDate of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of your employment, you shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, an amount necessary so that the total payments hereunder equal the Excise Tax Compensation Net Payment, plus interest on the amount of such repayment at a rate equivalent to the rate described in Section 280G (3d) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because (4) of the inclusion Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of your employment, the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable with respect to such excess) at the Executive's adjusted gross income. The payment time that the amount of a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon the Executive's termination of employment or the receipt of severance benefits under this Agreementsuch excess is finally determined.

Gross-Up Payment. (a) Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any payment, distribution or acceleration of vesting of any award or benefit by the Company or its Subsidiaries to or for the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration payment pursuant to the terms of this Agreement agreement or otherwise) (a "Payment") would any other agreement will be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986 ("Code, ") or any interest successor or penalties are incurred by similar provision, the 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 the Executive Company shall be entitled to receive pay Mr. Mahoney an additional payment amount (a the "Gross-Up Payment") in an amount such that xxx xxx xxxunt retained by Mr. Mahoney after payment by the Executive deduction of all taxes any Excise Tax on such payments (including exclxxxxx xxxxxnts pursuant to this Section 15), and after deduction for any interest or penalties imposed with respect to such taxes) imposed federal, state and local income tax and Excise Tax upon the Gross-Up Paymentpayment provided for by this Section 15, the Executive retains an amount shall be equal to the sum amount of such payments (iexcluding payments pursuant to this Section 15) before payment of any Excise Tax (hereinafter the "Excise Tax Compensation Net Payment"). For purposes of determining whether any of such payments will be subject to the Excise Tax imposed upon and the Payments and (ii) amount of such Excise Tax, any payments or benefits received or to be received by Mr. Mahoney in connection with a Change of Control or his terminatiox xx xxxxxxment shall be treated as "parachute payments" within the product meaning of any deductions disallowed because Section 280G of the inclusion Code, and all "excess parachute payments" within the meaning of Section 280G of the Gross-Up Payment Code shall be treated as subject to the Excise Tax, unless in the Executiveopinion of tax counsel selected by the Company's adjusted gross income for federal income tax purposes independent auditors and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is acceptable to be madeMr. Mahoney such payments or benefits do not constitute parachute paxxxxxx xx xxcess parachute payments. For purposes of determining the amount of the Gross-Up Payment, the Executive Mr. Mahoney shall be deemed to (1) pay applicable all federal income taxes at the highest applicable marginal rates hxxxxxx xxxxinal rate of federal income taxation for in the calendar year in which the Gross-Up Payment is to be made, (2) pay applicable made and state and local income taxes at the highest applicable marginal rate rates of taxation for in the calendar year in which state and locality of his residence on the Gross-Up Payment is to be madeDate of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of Mr. Mahoney's employment, Mr. Mahoney shall repay to the Company, at xxx xxxx xxxt the amount xx xxxx xxxuction in Excise Tax is finally determined, an amount necessary so that the total payments hereunder equal the Excise Tax Compensation Net Payment, plus interest on the amount of such repayment at a rate equivalent to the rate described in Section 280G (3d) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because (4) of the inclusion Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of his employment, the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable with respect to such excess) at the Executive's adjusted gross incometime that the amount of such excess is finally determined. The payment of a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon paid not later than the Executive's termination Date of employment Termination or, if and to the extent such payment is not known or calculable as of such date, as soon as the receipt of severance benefits under this Agreementamount is known and calculable.

Gross-Up Payment. (a) Anything The term “Gross Up Payment” as used in this Agreement shall mean a payment to or on behalf of Employee which shall be sufficient to pay (1) 100% of any excise tax described in this Section 11, (2) 100% of any federal, state and local income tax and social security and other employment tax on the payment made to pay such excise tax as well as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by the Internal Revenue Service on Employee which are related to the contrary notwithstanding, in the event it timely payment of such excise tax (unless such interest or penalties are attributable to Employee’s willful misconduct or gross negligence with respect to such timely payment). A Gross Up Payment shall be determined made by the Company promptly after either the Company or the Company’s independent accountants determine that any paymentpayments and benefits called for under this Employment Agreement together with any other payments and benefits made available to Employee by the Company and any other person will result in Employee being subject to an excise tax under § 4999 of the Internal Revenue Code of 1986, distribution as amended (which shall be referred to in this Section 11 as the “Code”) or acceleration of vesting such an excise tax is assessed against Employee as a result of any award such payments and other benefits if Employee takes such action (other than waiving Employee’s right to any payments or benefit benefits in excess of the payments or benefits which Employee has expressly agreed to waive under this Section 11) as the Company reasonably requests under the circumstances to mitigate Employee’s Initials: or challenge such excise tax; provided, however, if the Company or the Company’s independent accountants make the determination described in this Section 11 and, further, determine that Employee will not be subject to any such excise tax if Employee waives Employee’s right to receive a part of such payments or benefits and such part does not exceed $10,000, Employee shall irrevocably waive Employee’s right to receive such part if an independent accountant or lawyer retained by Employee and paid by the Company agrees with the determination made by the Company or its Subsidiaries to or for the benefit of the Executive (whether paid or payable, distributed or distributable or accelerated or subject to acceleration pursuant to the terms of this Agreement or otherwise) (a "Payment") would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by the Executive Company’s independent accountants with respect to the effect of such excise tax (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 an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes) imposed upon the Gross-Up Payment, the Executive retains an amount equal to the sum of (i) the Excise Tax imposed upon the Payments and (ii) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (1) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, (2) pay 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 deduction of such state and local taxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross incomepayments or benefits. The payment of a Gross-Up Payment Any determinations under this Section 3(a11 shall be made in accordance with § 280G of the Code and any applicable related regulations (whether proposed, temporary or final) shall and any related Internal Revenue Service rulings and any related case law and, if the Company reasonably requests that Employee take action to mitigate or challenge, or to mitigate and challenge, any such tax or assessment (other than waiving Employee’s right to any payments or benefits in no event be conditioned upon excess of the Executive's termination of employment payments or the receipt of severance benefits which Employee has expressly agreed to waive under this AgreementSection 11) and Employee complies with such request, the Company shall provide Employee with such information and such expert advice and assistance from the Company’s independent accountants, lawyers and other advisors as Employee may reasonably request and shall pay for all expenses incurred in effecting such compliance and any related fines, penalties, interest and other assessments.