Common use of Gross-Up Payment Clause in Contracts

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of Anything in this Exhibit Agreement to the contrary notwithstanding, in the event it shall be made without regard to whether determined that any payment or distribution by the deductibility of such payments (or any other payments or benefits Company to or for the benefit of Executivethe Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, payments or distributions made pursuant to any deferred compensation or supplemental retirement plan), but determined without regard to any additional payments required under this Section 9) (a “Payment”) would be limited subject to the excise tax imposed by Section 4999 of the Code (or precluded any successor provision thereto), by reason of being considered “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments successor provision thereto), or benefits) would subject any interest or penalties are incurred by the Executive with respect to the federal such excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (such tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”). If any portion of , then the payments or benefits Executive shall be entitled to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive receive an additional amount payment (the a “grossGross-up paymentUp Payment”) in an amount such that after reduction for payment by the Executive of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-up payment equals Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax with respect imposed upon the Payments, it being understood and agreed, anything in this Agreement to the Excess Parachute Payments; providedcontrary notwithstanding, that in no event shall the Executive be entitled to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of pursuant to this Section C.3, shall be adjusted 9 other than in respect of payments made pursuant to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”6(b). Notwithstanding the foregoing, if Executive shall not be entitled to receive a Gross-Up Payment unless the Internal Revenue Service shall assert an Excise Tax liability after-tax benefit that Executive is higher to receive will be reduced by greater than twenty percent (20%) as a result of the Excise Tax (if any) determined by excise tax. In all events, any payment pursuant to this Section 9 will be made no later than 2-1/2 months following the accounting firm, end of the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityyear in which a Participant’s termination of employment occurs.

Gross-Up Payment. Payments If at any time or from time to time, it shall be determined by tax counsel mutually agreeable to Company and Employee that any payment or other benefit to Employee pursuant to this Agreement or otherwise (“Potential Parachute Payment”) is or will become subject to the excise tax imposed by Section 4999 of the Code or any similar tax (“Excise Taxes”), then Company shall, subject to the limitations below, pay or cause to be paid a tax gross-up payment (“Gross-Up Payment”) with respect to all such Excise Taxes and other taxes on the Gross-Up Payment. The Gross-Up Payment shall be an amount equal to the product of (a) the amount of the Excise Taxes multiplied by (b) a fraction (the “Gross-Up Multiple”), the numerator or which is one (1.0), and the denominator of which is one (1.0) minus the lesser of (i) the sum, expressed as a decimal fraction, of the effective marginal rates of any taxes and any Excise Taxes applicable to the Gross-Up Payment or (ii) .80, it being intended that the Gross-Up Multiple shall in no event exceed five (5.0). If different rates of tax are applicable to various portions of a Gross-Up Payment, the weighted average of such rates shall be used. Excise Taxes and other penalties under Section C.1. and Section C.2. 409A of the Code shall not be “any similar tax” for purposes of this Exhibit Agreement. (a) To the extent possible, any payments or other benefits to Employee pursuant to this Agreement shall be allocated as consideration for Employee’s entry into the covenants made by him in Paragraph 4(a). (b) Notwithstanding any other provisions of this Section 6, if the aggregate After-Tax Amount (as defined below) of the Potential Parachute Payments and Gross-Up Payment that, but for this limitation, would be payable to Employee, does not exceed 120% of After-Tax Floor Amount (as defined below), then no Gross-Up Payment shall be made without regard to whether Employee and the deductibility aggregate amount of such payments Potential Parachute Payments payable to Employee shall be reduced (or but not below the Floor Amount) to the largest amount which would both (i) not cause any other payments or benefits Excise Tax to or for the benefit be payable by Employee and (ii) not cause any Potential Parachute Payments to become nondeductible by Company by reason of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would successor provision). For purposes of the preceding sentence, Employee shall be deemed to be subject Executive to the federal excise highest effective after-tax levied on certain “excess parachute payments” under Section 4999 marginal rate of the Code (the “Excise Tax”)taxes. If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for For purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.Agreement:

Gross-Up Payment. Payments (i) To the extent that any (a) severance payment, (b) transaction or other bonus payment, (c) payment under any transaction or other incentive plan, (d) payment related to equity or made under an equity incentive program, or (e) other amounts or payments of any type or kind whatsoever, in the nature of compensation (within the meaning of Section C.1. 280G of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder (“Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (280G”)) or any other payments or benefits otherwise to or for the benefit of Executive) would be limited the Executive under this Agreement, or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments any other agreement or plan, or otherwise (or any part of such amount or other payments or benefitspayment) would subject Executive to the federal excise tax levied on certain (collectively, “excess parachute payments” under Section 4999 of the Code (the “Excise TaxPayments”). If , in any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) case constitutes an “excess parachute payment” within the meaning of Section 280G and Section 4999 of the Internal Revenue Code (“Section 4999”), then the aggregate Company shall pay to the Executive an additional sum (“Gross-Up Payment”) such that, after all taxes applicable to the receipt of such payments being hereinafter referred amount have been subtracted therefrom, the remaining amount will equal the sum of the amount of tax imposed with respect to as the “Excess Parachute Payments”excess parachute payments,” plus any interest and penalties thereon (other than those caused solely by Executive’s action or inaction). Therefore, the effect shall be to maintain the Executive in the same financial position that he would have been in had no tax under Section 4999 been imposed. All payments and reimbursements to which the Executive is entitled under this Section 11 shall be made not later than April 15 of the taxable year of the Executive next following the taxable year of the Executive in which the Executive receives amounts subject to Section 4999. (ii) Notwithstanding the immediately preceding paragraph, in the event that a reduction to the Payments in respect of the Executive of 10% or less, but not more than $250,000, would cause none of the Payments to be “excess parachute payments,” the Executive will not be entitled to a Gross-Up Payment and the Payments shall be reduced to the extent necessary so that none of the Payments shall be “excess parachute payments.” Unless the Executive shall have given prior written notice to the Company specifying a different order by which to effectuate the foregoing, the Company shall promptly pay reduce or eliminate the Payments (x) by first reducing or eliminating the portion of the Payments which are not payable in cash (other than that portion of the Payments subject to clause (z) hereof), (y) then by reducing or eliminating cash payments (other than that portion of the Payments subject to clause (z) hereof) and (z) then by reducing or eliminating the portion of the Payments (whether payable in cash or not payable in cash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the date of the Change in Control. Any notice given by the Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited pursuant to the Excise Taxpreceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation. (iii) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the The provisions of this Section C.311 shall expire, and shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest no further force or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further providedeffect, that ifon December 31, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability2010.

Gross-Up Payment. Payments under Section C.1. and Section C.2. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Exhibit shall be made without regard to whether Article 10), in the deductibility of such payments (event that any payment, benefit or any other payments or benefits distribution by the Company to or for the benefit of Executive) Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive Employee an additional amount payment (the a “grossGross-up paymentPayment”) in an amount such that after reduction for payment by Employee of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including any Excise Tax imposed on any Gross-up payment equals Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax with respect to imposed upon all Payments except for the Excess Parachute Cobalt Equity Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and . Notwithstanding the provisions of this Section C.3the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 8, if applicable, shall be adjusted made by reducing Payments payable hereunder (including reducing a Payment to zero) in the extent necessary order in which such Payments would be made (but only beginning with such Payment that would be made first in time and continuing, to the extent necessary) to comply with the requirements of Section 409A with respect , through to such payment so Payment that would be made last in time). For purposes of reducing the payment does not give rise Payments to the interest or additional tax Safe Harbor Amount, only amounts described at Section 409A(a)(1)(Bpayable under Article 8 (and no other Payments) or Section 409A(b)(4) shall be reduced. If the reduction of the Code (amount payable under Article 6 would not result in a reduction of the “Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 8 shall be reduced pursuant to this Section 409A penalties”)10.01. The Company’s obligation to make a Gross-up Payment under this Article 10 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; and further provided, however, that if, notwithstanding in no event shall the immediately preceding proviso, the grossGross-up payment cannot Payment be made to conform to later than the requirements end of Section 409A of Employee’s taxable year next following Employee’s taxable year in which Employee remits the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penaltiesrelated taxes. The Company and Employee shall make an initial determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, a Gross-up Payment is required and the amount of any grosssuch Gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityPayment.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit shall be made without regard In the event that the Executive becomes ---------------- entitled to whether the deductibility of such payments (Severance Benefits or any other benefits or payments under Section 2 of this Agreement (other than pursuant to this Section 2.6(C)) or benefits to the KESOP or for the benefit of Executive) would be limited or precluded DSOP by Section 280G reason of the Code accelerated vesting of stock options thereunder (“Section 280G”) together, the "Total Benefits"), and without regard to whether such payments (or in the event that any other payments or benefits) would of the Total Benefits will be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to the Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Taxes and FICA and Medicare withholding taxes upon the payment provided for by this Section 2.6(C), shall be equal to the Total Benefits. For purposes of determining whether any of the Total Benefits will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or benefits received or to be received by the Executive in connection with a Change in Control or the Executive's termination of employment (whether pursuant to the terms of this Agreement or any other agreement, plan or arrangement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all taxes (including but not limited "excess parachute payments" within the meaning of Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel ("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(b)(4) of the Code in excess of the Base Amount, or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Benefits which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Benefits reduced by the amount of such Total Benefits that in the opinion of Tax Counsel are not parachute payments, or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i), above), and (iii) the value of any 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 Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination, net of the reduction in federal income taxes which could be obtained from deduction of such state and local taxes (calculated by assuming that any reduction under Section 68 of the Code in the amount of itemized deductions allowable to the Executive applies first to reduce the amount of such state and local income taxes that would otherwise be deductible by the Executive). In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment to the Executive in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that excess is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityfinally determined.

Gross-Up Payment. Payments under Section C.1. and Section C.2. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Exhibit shall be made without regard to whether Section 8.01), in the deductibility of such payments (event that any payment, benefit or any other payments or benefits distribution by the Company to or for the benefit of Executive) Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive Employee an additional amount payment (the a “grossGross-up paymentPayment”) in an amount such that after reduction for payment by Employee of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including any Excise Tax imposed on any Gross-up payment equals Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax with respect to imposed upon all Payments except for the Excess Parachute Cobalt Equity Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and . Notwithstanding the provisions of this Section C.3the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be adjusted made by reducing Payments payable hereunder (including reducing a Payment to zero) in the extent necessary order in which such Payments would be made (but only beginning with such Payment that would be made first in time and continuing, to the extent necessary) to comply with the requirements of Section 409A with respect , through to such payment so Payment that would be made last in time). For purposes of reducing the payment does not give rise Payments to the interest or additional tax Safe Harbor Amount, only amounts described at Section 409A(a)(1)(Bpayable under Article 6 (and no other Payments) or Section 409A(b)(4) shall be reduced. If the reduction of the Code (amount payable under Article 6 would not result in a reduction of the “Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 409A penalties”)8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; and further provided, however, that if, notwithstanding in no event shall the immediately preceding proviso, the grossGross-up payment cannot Payment be made to conform to later than the requirements end of Section 409A of Employee’s taxable year next following Employee’s taxable year in which Employee remits the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penaltiesrelated taxes. The Company and Employee shall make an initial determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, a Gross-up Payment is required and the amount of any grosssuch Gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityPayment.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit shall be made without regard to whether (i) Whether or not the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive becomes entitled to the federal excise tax levied on certain “excess parachute payments” under Severance Payments, except as otherwise provided in Section 4999 of the Code (the “Excise Tax”). If 6(b)(ii) hereof, if any portion of the payments or benefits received or to be received by the Executive in connection with a Change in Control or for the benefit Executive's termination of Executive employment (including, but not limited to, payments and benefits under whether pursuant to the terms of this Agreement but determined without regard to this paragraphor any other plan, arrangement or agreement with the Company, with any Person whose actions result in a Change in Control or with any Person affiliated with the Company or such Person) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments or benefits, excluding the Gross-Up Payment, being hereinafter referred to as the “Excess Parachute "Total Payments”)") will be subject to the Excise Tax, the Company shall promptly pay to the Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, and after taking into account the phase out of the itemized deductions attributable to the Gross-Up Payment, shall be equal to the Total Payments. (ii) If the Total Payments would (but for all taxes this Section 6(b)) be subject (including but not limited in whole or part) to the Excise Tax, but the aggregate value of the portion of the Total Payments that are considered "parachute payments" within the meaning of section 280G(b)(2) of the Code is less than 330% of the Executive's Base Amount, then subsection (i) of this Section 6(b) shall not apply, and the cash Severance Payments shall be reduced (if necessary, to zero), and all other Severance Payments shall thereafter be reduced (if necessary, to zero), to the extent necessary to cause the Total Payments not to be subject to the Excise Tax. (iii) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) all of the Total Payments shall be treated as "parachute payments" (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive and selected by the accounting firm that was, immediately prior to the Change in Control, the Company's independent auditor (the "Auditor"), such 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, (B) all "excess parachute payments" within the meaning of Section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, 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 (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, (x) the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the states and localities of the Executive's residence and employment on the Date of Termination, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes, (y) the Executive shall be deemed to pay employment taxes at the highest rates in effect in the state and locality of the Executive's employment, and (z) amounts actually withheld from any payment to the Executive pursuant to Section 11 hereof with respect to income or employment taxes shall be ignored. (iv) 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 and, after giving effect to such Finally Determined amount, the Severance Payments are to be reduced pursuant to Section 6(b)(ii) hereof, then the Executive shall repay to the Company, within five (5) business days following the date that the amount of such reduction in the Severance Payments is Finally Determined, the Gross-Up Payment previously paid to the Executive and the amount of such reduction in the Severance Payments, plus interest on the amount of such repayments at 120% of the rate provided in Section 1274(b)(2)(B) of the Code. (v) 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, but, after giving effect to such Finally Determined amount, no reduction of the Severance Payments is required pursuant to Section 6(b)(ii) hereof, then the Executive shall repay to the Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is Finally Determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive), to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Executive'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. (vi) Except as otherwise provided in Section 6(b)(vii) below, in the event that the Excise Tax is Finally 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 Gross-Up Payment), the Company shall, within five (5) business days following the time that the amount of such excess is Finally Determined, (A) make an additional Gross-Up Payment in respect of such excess and a Gross-Up Payment in respect of any amounts paid pursuant to clause (B) or (C) of this Section 6(b)(vi) (plus any interest, penalties or additions payable by the Executive with respect to such grossamounts), (B) if the Severance Payments were reduced pursuant to Section 6(b)(ii) hereof, but after giving effect to such final determination, the Severance Payments should not have been so reduced, the amount by which the Severance Payments were reduced pursuant to Section 6(b)(ii) hereof, and (C) interest on such amounts at 120% of the rate provided in Section 1274(b)(2) of the Code. (vii) In the event that the Severance Payments were reduced pursuant to Section 6(b)(ii) hereof and the value of the Total Payments that are considered "parachute payments" within the meaning of Section 280G(b)(2) of the Code is Finally Determined to differ from the amount taken into account hereunder in calculating the Gross-up payment equals Up Payment, but such Finally Determined value still does not exceed 330% of the Excise Tax with respect Executive's Base Amount, then, within five (5) business days following the date on which such value is Finally Determined, (x) the Company shall pay to the Excess Parachute Payments; provided, that Executive the amount (if any) by which the reduced Severance Payments (after taking the Finally Determined value into account) exceeds the amount of the reduced Severance Payments actually paid to the extent any gross-up Executive, plus interest on the amount of such payment would be considered “deferred compensation” for purposes at 120% of the rate provided in Section 409A 1274(b) of the Code, or (y) the manner and time of payment, and the provisions of this Section C.3, Executive shall be adjusted pay to the extent necessary Company the amount (but only if any) by which the reduced Severance Payments actually paid to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, Executive exceeds the amount of the gross-up payment shall be determined without regard to any gross-up for reduced Severance Payments (after taking the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments andFinally Determined value into account), if so, plus interest on the amount of such payments, payment at 120% of the amount rate provided in Section 1274(b) of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityCode.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit In the event it shall be made without regard to whether the deductibility determined that any ▇▇▇▇▇▇▇ or distribution of such payments (or any other payments or benefits type to or for the benefit of Executive) would be limited the Employee, by Westport, any Affiliate, any person who acquires ownership or precluded by Section 280G effective control of the Code (“Section 280G”) and without regard to whether such payments (Westport or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 ownership of the Code (the “Excise Tax”). If any a substantial portion of the payments or benefits to or for the benefit of Executive Westport's assets (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G of the Code and the regulations thereunder) or any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the aggregate "Total Payments"), is or will be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such payments being hereinafter excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the “Excess Parachute Payments”"Excise Tax"), then the Company Employee shall promptly pay be entitled to Executive receive an additional payment (a "Gross-Up Payment") in an amount (the “gross-up payment”) such that after reduction for payment by the Employee of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including any income tax, employment tax or Excise Tax, imposed upon the Gross-up payment equals Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax with respect imposed upon the Total Payments. Notwithstanding the foregoing provisions of this Section 6(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excess Parachute Payments; provided, Excise Tax if the Total Payments were reduced by an amount that to is less than 10% of the extent any gross-up payment portion of the Total Payments that would be considered “deferred compensation” for purposes of treated as "parachute payments" under Section 409A 280G of the Code, then the manner and time of payment, and amounts payable to the provisions of Employee under this Section C.3, Agreement shall be adjusted reduced to the extent necessary (but only maximum amount that could be paid to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give Employee without giving rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if any) determined applicable, shall be made by reducing first the payment under Section 4(a), unless an alternative method of reduction is elected by the accounting firmEmployee. For purposes of reducing the Total Payments to the Safe Harbor Cap, the Company only amounts payable under this Agreement (and no other amounts) shall promptly augment the gross-up payment to address such higher Excise Tax liabilitybe reduced.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of Notwithstanding Anything in this Exhibit Agreement to the contrary, in the event it shall be made without regard to whether the deductibility of such payments (determined that any payment or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits distribution to or for the benefit of Executive whether paid or payable or distributed or distributable pursuant to the terms of this Agreement (including, but not limited to, payments and benefits other than any payment under this Agreement but determined without regard Section 3) or otherwise would be subject to this paragraph) constitutes an “excess parachute payment” within the meaning excise tax imposed by Section 4999 of Section 280G the Internal Revenue Code of 1986 (the aggregate of “Code”) or a similar section (such payments being hereinafter referred to as payment, a “Change in Control Payment” and such excise tax on all such Change in Control Payments, together with any interest and penalties thereon, collectively the “Excess Parachute PaymentsExcise Tax”), the Company then Executive shall promptly pay be entitled to Executive receive an additional amount payment (the a “grossGross-up paymentUp Payment”) in an amount determined by the Accounting Firm such that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; providedby Executive of any tax thereon, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A Executive retains an amount of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted Gross-Up Payment equal to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the grossExcise Tax; provided, however, that if the aggregate value (as determined under Section 280G of the Code) of such Change in Control Payments is less than 110% of the product of “3 times” the Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) (such product, the “Golden Parachute Threshold”), then Executive shall not be entitled to any Gross-up payment Up Payment and, instead, the Change in Control Payments shall be determined without regard reduced so that their aggregate value (as so determined) is equal to any gross-up for $1.00 less than the Golden Parachute Threshold. For purposes of this Section 409A penalties. The determination as to whether 3, Executive’s payments applicable Federal, state and benefits include Excess Parachute Payments andlocal taxes shall be computed at the maximum marginal rates, if so, taking into account the amount of such payments, the amount effect of any Excise Tax owed with respect thereto, and loss of personal exemptions resulting from receipt of the amount of any grossGross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityUp Payment.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit shall be made without regard to whether (i) Whether or not the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive becomes entitled to the federal excise tax levied on certain “excess parachute payments” under Severance Payments, except as otherwise provided in Section 4999 of the Code (the “Excise Tax”). If 6(b)(ii) hereof, if any portion of the payments or benefits received or to be received by the Executive in connection with a Change in Control or for the benefit Executive’s termination of Executive employment (including, but not limited to, payments and benefits under whether pursuant to the terms of this Agreement but determined without regard to this paragraphor any other plan, arrangement or agreement with the Company, with any Person whose actions result in a Change in Control or with any Person affiliated with the Company or such Person) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments or benefits, excluding the Gross-Up Payment, being hereinafter referred to as the “Excess Parachute Total Payments”)) will be subject to the Excise Tax, the Company shall promptly pay to the Executive an additional amount (the “grossGross-up paymentUp Payment”) such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, and after taking into account the phase out of the itemized deductions attributable to the Gross-Up Payment, shall be equal to the Total Payments. (ii) If the Total Payments would (but for all taxes this Section 6(b)) be subject (including but not limited in whole or part) to the Excise Tax, but the aggregate value of the portion of the Total Payments that are considered “parachute payments” within the meaning of section 280G(b)(2) of the Code is less than 330% of the Executive’s Base Amount, then subsection (i) of this Section 6(b) shall not apply, and the cash Severance Payments shall be reduced (if necessary, to zero), and all other Severance Payments shall thereafter be reduced (if necessary, to zero), to the extent necessary to cause the Total Payments not to be subject to the Excise Tax. (iii) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) all of the Total Payments shall be treated as “parachute payments” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to the Executive and selected by the accounting firm that was, immediately prior to the Change in Control, the Company’s independent auditor (the “Auditor”), such 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, (B) all “excess parachute payments” within the meaning of Section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, 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 (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, (x) the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the states and localities of the Executive’s residence and employment on the Date of Termination, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes, (y) the Executive shall be deemed to pay employment taxes at the highest rates in effect in the state and locality of the Executive’s employment, and (z) amounts actually withheld from any payment to the Executive pursuant to Section 11 hereof with respect to income or employment taxes shall be ignored. (iv) 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 and, after giving effect to such Finally Determined amount, the Severance Payments are to be reduced pursuant to Section 6(b)(ii) hereof, then the Executive shall repay to the Company, within five (5) business days following the date that the amount of such reduction in the Severance Payments is Finally Determined, the Gross-Up Payment previously paid to the Executive and the amount of such reduction in the Severance Payments, plus interest on the amount of such repayments at 120% of the rate provided in Section 1274(b)(2)(B) of the Code. (v) 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, but, after giving effect to such Finally Determined amount, no reduction of the Severance Payments is required pursuant to Section 6(b)(ii) hereof, then the Executive shall repay to the Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is Finally Determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive), to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Executive’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. (vi) Except as otherwise provided in Section 6(b)(vii) below, in the event that the Excise Tax is Finally 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 Gross-Up Payment), the Company shall, within five (5) business days following the time that the amount of such excess is Finally Determined, (A) make an additional Gross-Up Payment in respect of such excess and a Gross-Up Payment in respect of any amounts paid pursuant to clause (B) or (C) of this Section 6(b)(vi) (plus any interest, penalties or additions payable by the Executive with respect to such grossamounts), (B) if the Severance Payments were reduced pursuant to Section 6(b)(ii) hereof, but after giving effect to such final determination, the Severance Payments should not have been so reduced, the amount by which the Severance Payments were reduced pursuant to Section 6(b)(ii) hereof, and (C) interest on such amounts at 120% of the rate provided in Section 1274(b)(2) of the Code. (vii) In the event that the Severance Payments were reduced pursuant to Section 6(b)(ii) hereof and the value of the Total Payments that are considered “parachute payments” within the meaning of Section 280G(b)(2) of the Code is Finally Determined to differ from the amount taken into account hereunder in calculating the Gross-up payment equals Up Payment, but such Finally Determined value still does not exceed 330% of the Excise Tax with respect Executive’s Base Amount, then, within five (5) business days following the date on which such value is Finally Determined, (x) the Company shall pay to the Excess Parachute Payments; provided, that Executive the amount (if any) by which the reduced Severance Payments (after taking the Finally Determined value into account) exceeds the amount of the reduced Severance Payments actually paid to the extent any gross-up Executive, plus interest on the amount of such payment would be considered “deferred compensation” for purposes at 120% of the rate provided in Section 409A 1274(b) of the Code, or (y) the manner and time of payment, and the provisions of this Section C.3, Executive shall be adjusted pay to the extent necessary Company the amount (but only if any) by which the reduced Severance Payments actually paid to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, Executive exceeds the amount of the gross-up payment shall be determined without regard to any gross-up for reduced Severance Payments (after taking the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments andFinally Determined value into account), if so, plus interest on the amount of such payments, payment at 120% of the amount rate provided in Section 1274(b) of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityCode.

Gross-Up Payment. Payments In the event that any payments to which Employee becomes entitled under Section C.1. and Section C.2. of this Exhibit shall Employment Agreement (the "Agreement Payments") will be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under (the "Excise Tax") imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed), the “Company shall pay to Employee at the time specified below, an additional amount (the "Gross-Up Payment") such that the net amount retained by Employee (taking into account the Total Payments (as hereinafter defined) and the Gross-Up Payment), after deduction of any Excise Tax on the Total Payments and any federal, state and local income tax and Excise Tax upon the Gross-Up Payment provided for by this Section 15, but before deduction for any federal, state or local income tax on the Total Payments, shall be equal to the "Total Payments," as defined below. Except as otherwise provided below, the Gross-Up Payment or portion thereof provided for in this Section 15 shall be paid not later than the thirtieth (30th) day following payment of any amounts under the Employment Agreement that will be subject to the Excise Tax”; provided, however, that if the amount of such Gross-Up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined, but in no event later than the forty-fifth (45th) day after payment of any amounts under the Employment Agreement that will be subject to the Excise Tax. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Employee, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If For purposes of determining whether any portion of the payments Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments, accruals, vestings or other compensatory benefits received or to be received by Employee in connection with a Change in Control of the Company or for the benefit termination of Executive Employee's employment (including, but not limited to, payments and benefits under whether pursuant to the terms of this Agreement but determined without regard to this paragraphor 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 (which, together with the Agreement Payments, shall constitute the "Total Payments") constitutes an “excess shall be treated as "parachute payment” payments" within the meaning of Section 280G 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, unless, in the opinion of tax counsel selected by the Company's independent auditors, such other payments or benefits (in whole or in part) represent reasonable compensation for services actually rendered within the aggregate meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (a) the total amount of the Total Payments, and (b) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i) above) and (iii) the value of any 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 Code. For purposes of determining the amount of the Gross-Up Payment, Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made and the applicable state and local income taxes at the highest 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 payments state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-Up Payment is made, Employee shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the portion of the Gross-Up Payment being hereinafter referred repaid) if such repayment results in a reduction in Excise Tax and/or a federal, state and local income tax deduction, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to as exceed the “Excess Parachute Payments”amount taken into account hereunder at the time the Gross-Up Payment is made (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 promptly pay to Executive make an additional amount (the “gross-up payment”) that after reduction for all taxes payment in respect of such excess (including but not limited to the Excise Tax) plus any interest payable with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that excess is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityfinally determined.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit In the event that it shall be made without regard to whether determined at any time that the deductibility of such payments payment provided under paragraph 8(d) above (the "Contract Payment") or any other payments payment or benefits to or for distribution by the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive Company to the federal excise Executive (including deemed payments arising from accelerated vesting of stock options) is subject to the tax levied on certain “excess parachute payments” under Section (the "Excise Tax") imposed by section 4999 of the Internal Revenue Code (the “Excise Tax”). If any portion of 1986, as amended, Section 11.5 of the payments Company's 1997 Employee Stock Option Plan or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess similar "parachute payment” within " limitations under any other agreement between the meaning of Section 280G (Company and the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”)Executive that are in effect shall not apply, and the Company shall promptly pay to the Executive an additional amount (the “gross-up payment”"Gross- Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Contract Payment and such other Total Payments (as defined below) and any federal and state and local income tax and Excise Tax upon the payment provided for by this paragraph, shall be equal to the Contract Payment and such other Total Payments. For purposes of determining whether any of the payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or benefits received or to be received by the Executive in connection with a change in control of the Company or the Executive's termination of employment, whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, its successors, any person whose actions result in a change in control of the Company or any corporation affiliated (or which, as a result of the completion of a transaction causing a change in control, will become affiliated) with the Company within the meaning of Section 1504 of the Code (together with the Contract Payment, the "Total Payments") shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and all taxes (including but not limited "excess parachute payments" within the meaning of section 280G(b)(1) shall be treated as subject to the Excise Tax) with respect to such gross-up payment equals , unless in the Excise Tax with respect opinion of tax counsel selected by the Company's independent auditors and acceptable to the Excess Parachute Payments; providedExecutive the Total Payments (in whole or in part) do not constitute parachute payments, that to or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the extent any gross-up payment would be considered “deferred compensation” for purposes meaning of Section 409A section 280G(b)(4) of the Code either in their entirety or in excess of the base amount within the meaning of section 280G(b)(3) of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted or are otherwise not subject to the extent necessary Excise Tax, (but only to the extent necessaryii) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the grossTotal Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(1) (after applying clause (i), above), and (iii) the value of any non-up cash benefits or any deferred payment or benefit shall be determined without regard by the Company's independent auditors in accordance with the principles of sections 280G(b)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to any grosspay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-up for Up Payment is to be made and state and local income taxes at the Section 409A penaltieshighest marginal rate of taxation in the state and locality of the Executive's residence on the date of determination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. The determination as In the event that the Excise Tax is subsequently determined to whether Executive’s payments and benefits include Excess Parachute Payments andbe less than the amount taken into account hereunder at the time of payment of the Gross-Up Payment, if so, the Executive shall repay to the Company at the time that the amount of such payments, reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax and/or a federal state and local income tax deduction) plus interest on the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made such repayment at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.rate provided in section

Gross-Up Payment. Payments (a) In the event that the Executive becomes ---------------- entitled to any payments under Section C.1. and 5 or Section C.2. 8 of this Exhibit shall be made without regard to whether the deductibility of such payments (Agreement, or under any other payments agreement, plan or benefits to or arrangement for the benefit making of Executive) would be limited payments to the Executive upon a Change in Control or precluded by Section 280G upon the termination of employment caused by, subsequent to, or otherwise with respect to a Change in Control (together, the "Total Benefits"), and in the event that any of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would Total Benefits will be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to the Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 6, shall be equal to the Total Benefits. If no payment is due Executive upon a Change of Control under Section 5 of this Agreement, no payment shall be made under this Section 6. (b) For purposes of determining whether any of the Total Benefits will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or benefits received or to be received by the Executive in connection with a Change in Control or the Executive's termination of employment (whether pursuant to the terms of this Agreement or any other agreement, plan or arrangement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all taxes (including but not limited "excess parachute payments" within the meaning of Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel ("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(b)(4) of the Code in excess of the Base Amount, or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Benefits which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Benefits reduced by the amount of such Total Benefits that in the opinion of Tax Counsel are not parachute payments, or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i), above), and (iii) the value of any 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 Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination, net of the reduction in federal income taxes which could be obtained from deduction of such state and local taxes (calculated by assuming that any reduction under Section 68 of the Code in the amount of itemized deductions allowable to the Executive applies first to reduce the amount of such state and local income taxes that would otherwise be deductible by the Executive). (c) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment to the Executive in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such paymentsexcess is finally determined. (d) If Executive is entitled to any other payments or benefits in connection with a Change in Control or the termination of Executive's employment, the amount as referred to in clause (b) of any Excise Tax owed with respect theretothis Section 6, otherwise than those payable under this Agreement (collectively, "Other Arrangements"), and the amount if any of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior those Other Arrangements is subject to a Change limitation designed to prevent payments under them from being "parachute payments" or "excess parachute payments" within the meaning of Control the provisions of the Code referred to in clause (b) of this Section 6 through an express reference to such limitations in the “accounting firm”). Notwithstanding the foregoingCode, then, if the Internal Revenue Service any amount is payable to Executive under Section 5 of this Agreement, such limitations shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment no longer be deemed to address such higher Excise Tax liabilitybe effective for any purpose of those Other Arrangements or in making calculations under this Section 6.

Gross-Up Payment. Payments If at any time or from time to time, it shall be determined by tax counsel mutually agreeable to Employer and Employee that any payment or other benefit to Employee pursuant to this Agreement or otherwise (“Potential Parachute Payment”) is or will become subject to the excise tax imposed by Section 4999 of the Code or any similar tax (“Excise Taxes”), then Employer shall, subject to the limitations below, pay or cause to be paid a tax gross-up payment (“Gross-Up Payment”) with respect to all such Excise Taxes and other taxes on the Gross-Up Payment. The Gross-Up Payment shall be an amount equal to the product of (a) the amount of the Excise Taxes multiplied by (b) a fraction (the “Gross-Up Multiple”), the numerator or which is one (1.0), and the denominator of which is one (1.0) minus the lesser of (i) the sum, expressed as a decimal fraction, of the effective marginal rates of any taxes and any Excise Taxes applicable to the Gross-Up Payment or (ii) .80, it being intended that the Gross-Up Multiple shall in no event exceed five (5.0). If different rates of tax are applicable to various portions of a Gross-Up Payment, the weighted average of such rates shall be used. Excise Taxes and other penalties under Section C.1. and Section C.2. 409A of the Code shall not be “any similar tax” for purposes of this Exhibit Agreement. (a) To the extent possible, any payments or other benefits to Employee pursuant to this Agreement shall be allocated as consideration for Employee’s entry into the covenants made by him in Section 6. (b) Notwithstanding any other provisions of this Section 10, if the aggregate After-Tax Amount (as defined below) of the Potential Parachute Payments and Gross-Up Payment that, but for this limitation, would be payable to Employee, does not exceed 120% of After-Tax Floor Amount (as defined below), then no Gross-Up Payment shall be made without regard to whether Employee and the deductibility aggregate amount of such payments Potential Parachute Payments payable to Employee shall be reduced (or but not below the Floor Amount) to the largest amount which would both (i) not cause any other payments or benefits Excise Tax to or for the benefit be payable by Employee and (ii) not cause any Potential Parachute Payments to become nondeductible by Employer by reason of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would successor provision). For purposes of the preceding sentence, Employee shall be deemed to be subject Executive to the federal excise highest effective after-tax levied on certain “excess parachute payments” under Section 4999 marginal rate of the Code (the “Excise Tax”)taxes. If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for For purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.Agreement:

Gross-Up Payment. Payments under (a) Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined that any payment or consideration received by Executive from a Group Company (or any Person whose actions result in a change in ownership or effective control or in the ownership of a substantial portion of assets of the Group Companies covered by Section C.1. and 280G(b)(2) of the Internal Revenue Code of 1986 of the United States, as amended (the “Code”), or any Person affiliated with any Group Company or any such Person) in connection with a Change of Control or any other change in ownership or control or in the ownership of a substantial portion of assets for purposes of Section C.2. 280G (in each case whether paid or payable pursuant to the terms of this Exhibit shall be made Agreement or otherwise, but determined without regard to whether the deductibility of any additional payments required under this Section 6(a)) (any such payments (payment or any other payments or benefits to or for the benefit of Executiveconsideration, a “Payment”) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Code Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties are hereinafter collectively referred to as the “Excise Tax”). If any portion , the Company shall pay to Executive at the time specified in Section 6(e) below an additional amount (a “Gross-Up Payment”) such that the net amount of the Gross-Up Payment retained by Executive, after deduction of all federal, state and local income tax (and any interest and penalties imposed with respect thereto), employment tax and Excise Tax on the Gross-Up Payment, shall be equal to the amount of the Excise Tax imposed on such Payment. (b) For purposes of the foregoing Section 6(a), the proper amounts, if any, of the Excise Tax and the Gross-Up Payment shall be determined in the first instance by the Company. Such determination by the Company shall be promptly communicated in writing by the Company to Executive. Within 10 days of being provided with written notice of any such determination, Executive may provide written notice to the Compensation Committee (or, if there is no Compensation Committee, the Board) of any disagreement, in which event the amounts, if any, of the Excise Tax and the Gross-Up Payment shall be determined by an independent accounting firm mutually selected by the Company and Executive in which event the Company shall bear the costs of retaining such independent accounting firm. The determination of the Company (or in the event of disagreement, the accounting firm selected) shall be final and nonreviewable. (c) For purposes of determining whether any Payment will be subject to the Excise Tax and the amount of such Excise Tax under Section 6(a), any payments or benefits received or to or for the benefit be received by Executive in connection with a termination of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an employment shall be treated as “excess parachute paymentpayments” within the meaning of Section 280G (280G(b)(2) of the aggregate Code, and all “excess parachute payments” within the meaning of such payments being hereinafter referred to Section 280G(b)(1) of the Code shall be treated as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited subject to the Excise TaxTax unless the Company or the accounting firm selected above, as applicable, determines based on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, with substantial authority (within the meaning of Section 6662 of the Code), that such payments or benefits (in whole or in part) with respect do not constitute parachute payments, or that such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code. (d) For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rate of tax in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of tax in the state and locality of Executive’s residence on the date of termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such gross-up payment equals the Excise Tax with respect to the Excess Parachute Paymentsstate and local taxes; provided, however, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessaryextent) required to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(BRegulation §409A-3(i)(l)(v) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of under the Code, the amount of the grossGross-up payment Up Payment shall be determined without regard equal to any grossall of the federal, state and local taxes imposed on Executive as a result of the Excise Tax and Gross-up Up Payment. (e) The Gross-Up Payment provided for in Section 6(a) shall be made in a cash, lump-sum payment to Executive (or the Section 409A penalties. The determination as to whether appropriate taxing authority on Executive’s payments and benefits include Excess Parachute Payments andbehalf) when due but in no event later than the end of the year following the year in which Executive remits the Excise Tax, if sonet of any required tax withholdings, upon the later of (i) the fifth business day following the effective date of termination, or (ii) the calculation of the amount of such paymentsthe Gross-Up Payment under Section 6(b). Any Gross-Up Payment required hereunder that is not made in a timely manner shall bear interest at a rate equal to the prime rate quoted on the date the payment is first overdue by Citibank N.A., New York, New York plus two percent until paid. (f) As a result of the amount uncertainty in the application of any Excise Tax owed with respect theretoSection 280G of the Code at the time of a determination hereunder, and the amount of any gross-up payment shall it is possible that payments will be made at by the Company’s expense Company which should not have been made under Section 6(a) (“Overpayment”) or that additional payments which are not made by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior Company pursuant to a Change of Control Section 6(a) should have been made (the “accounting firmUnderpayment”). Notwithstanding In the foregoing, if event that there is a final determination by the Internal Revenue Service Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made, any such Overpayment shall assert an Excise Tax liability that be promptly reimbursed by Executive to the Company. In the event there is higher than the Excise Tax (if any) determined a final determination by the accounting firmInternal Revenue Service, a final determination by a court of competent jurisdiction or a change in the provisions of the Code or regulations pursuant to which an Underpayment arises under this Agreement, any such Underpayment shall be promptly paid by the Company to Executive, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. (g) Amounts which are vested benefits or which Executive is otherwise entitled to receive under any plan, policy, practice or program of or in any contract or agreement with the Company or any other Group Company at or subsequent to the date of termination of Executive’s employment for any reason shall promptly augment the gross-up payment to address be payable in accordance with such higher Excise Tax liabilityplan, policy, practice or program or contract or agreement except as explicitly modified by this Agreement.

Gross-Up Payment. If at any time or from time to time, it shall be determined by tax counsel mutually agreeable to DST and Executive that any payment or other benefit to Executive pursuant to this Agreement or otherwise ("Potential Parachute Payment") is or will be taken into account in determining the amount potentially subject to the excise tax imposed by Section 4999 of the Code or any similar tax ("Excise Taxes"), then DST shall, subject to the limitations below, pay or cause to be paid a tax gross-up payment ("Gross-Up Payment"). The Gross-Up Payment is intended to compensate Executive for all Excise Taxes payable by Executive with respect to Potential Parachute Payments and all Taxes or Excise Taxes payable by Executive with respect to the Gross-Up Payment, such payment to be made within 5 business days after determination of the amount thereof, and in no event later than the date the Executive is required to remit the Excise Taxes to the applicable tax authority. The Gross-Up Payment shall be an amount equal to the product of (a) the amount of the Excise Taxes multiplied by (b) a fraction (the "Gross-Up Multiple"), the numerator of which is one (1.0), and the denominator of which is one (1.0) minus the lesser of (i) the sum, expressed as a decimal fraction, of the effective marginal rates of any taxes and any Excise Taxes applicable to the Gross-Up Payment or (ii) ..80, it being intended that the Gross-Up Multiple shall in no event exceed five (5.0). If different rates of tax are applicable to various portions of a Gross-Up Payment, the weighted average of such rates shall be used. Excise Taxes and other penalties under Section C.1. and Section C.2. 409A of the Code shall not be "any similar tax" for purposes of this Exhibit Agreement. (a) To the extent possible, any payments or other benefits to Executive pursuant to this Agreement shall be allocated as consideration for Executive's entry into the covenants made by him in Paragraph 8(a). (b) Notwithstanding any other provisions of this Paragraph 9, if the aggregate After-Tax Amount (as defined below) of the Potential Parachute Payments and Gross-Up Payment that, but for this limitation, would be payable to Executive, does not exceed 120% of After-Tax Floor Amount (as defined below), then no Gross-Up Payment shall be made without regard to whether Executive and the deductibility aggregate amount of such payments Potential Parachute Payments payable to Executive shall be reduced (or but not below the Floor Amount) to the largest amount which would both (i) not cause any other payments or benefits Excise Tax to or for the benefit be payable by Executive and (ii) not cause any Potential Parachute Payments to become nondeductible by DST by reason of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 successor provision). For purposes of the Code (the “Excise Tax”)preceding sentence, Executive's highest effective after-tax marginal rate of taxes shall be applied. If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for For purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.Agreement:

Gross-Up Payment. Payments under Section C.1. and Section C.2. of Anything in this Exhibit Agreement to the contrary notwithstanding, following a Change in Control, if it shall be made without regard to whether determined by the deductibility of such payments Accounting Firm (as contemplated by Section 6(b) below) that any payment or distribution by the Surviving Entity or any other payments or benefits of its affiliates to or for the benefit of the Executive) , whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including, without limitation, any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”), would be limited an “excess parachute payment” with respect to which the Executive would be subject to the excise tax imposed by Section 4999 of the Code (or precluded any successor provision thereto) by reason of being considered “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments successor provision thereto) or benefits) would subject Executive to the federal excise any similar tax levied on certain “excess parachute payments” under Section 4999 of the Code imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereafter collectively referred to as the “Excise Tax”). , then: (1) If any portion the Total Parachute Payments do not exceed the Trigger Amount, then the payments and benefits to be made or provided under this Agreement to the Executive shall be reduced (reducing or eliminating the earliest payments first) by the least amount necessary, but not in excess of 20% of the payments or and benefits to be made and provided under this Agreement, such that no Payment will be subject to Excise Tax. If the elimination of 20% of the payments and benefits to be made or for provided under this Agreement that would otherwise be subject to the benefit Excise Tax is not sufficient to avoid the Excise Tax, then 20% of the payments and benefits provided under this Agreement shall be eliminated and the Executive shall be entitled to receive a Gross-Up Payment; provided, however, that no Gross-up Payment shall be made with respect to the Excise Tax, if any, attributable to any incentive stock option, as defined by Section 422 of the Code, granted prior to the execution of the Original Agreement. The Gross-Up Payment shall be in an amount such that, after payment by the Executive of all taxes (including, but not limited to, any federal, state or local income taxes, Excise Taxes, FICA and Medicare withholding taxes and interest or penalties imposed with respect to such taxes), including any Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment as determined after the elimination of 20% of the payments and benefits under as provided by this Agreement but determined without regard Section 6(a)(1). (2) If the Total Parachute Payments exceed the Trigger Amount, then the Executive shall be entitled to this paragraph) constitutes receive an additional payment or payments (collectively, a “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute PaymentsGross-Up Payment”); provided, the Company shall promptly pay to Executive an additional amount (the “grosshowever, that no Gross-up payment”) that after reduction for all taxes (including but not limited Payment shall be made with respect to the Excise Tax) , if any, attributable to any incentive stock option, as defined by Section 422 of the Code, granted prior to the execution of the Original Agreement. The Gross-Up Payment shall be in an amount such that, after payment by the Executive of all taxes (including, but not limited to, any federal, state or local income taxes, Excise Taxes, FICA and Medicare withholding taxes and interest or penalties imposed with respect to such grosstaxes), including any Excise Tax imposed upon the Gross-up payment equals Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax with respect to imposed upon the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityPayment.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“"Section 280G”") and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “"excess parachute payments” " under Section 4999 of the Code (the “"Excise Tax”"). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “"excess parachute payment” " within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “"Excess Parachute Payments”"), the Company shall promptly pay to Executive an additional amount (the “"gross-up payment”") that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “"deferred compensation” " for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “"Section 409A penalties”"); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s 's payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s 's expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “"accounting firm”"). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit In the event it shall be made without regard to whether the deductibility determined that any payment or distribution of such payments (or any other payments or benefits type to or for the benefit of Executive) would be limited the Officer, by Westport, any Affiliate, any person who acquires ownership or precluded by Section 280G effective control of the Code (“Section 280G”) and without regard to whether such payments (Westport or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 ownership of the Code (the “Excise Tax”). If any a substantial portion of the payments or benefits to or for the benefit of Executive Westport's assets (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G of the Code and the regulations thereunder) or any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the aggregate "Total Payments"), is or will be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such payments being hereinafter excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the “Excess Parachute Payments”"Excise Tax"), then the Company Officer shall promptly pay be entitled to Executive receive an additional payment (a "Gross-Up Payment") in an amount (the “gross-up payment”) such that after reduction for payment by the Officer of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including any income tax, employment tax or Excise Tax, imposed upon the Gross-up payment equals Up Payment, the Officer retains an amount of the Gross-Up Payment equal to the Excise Tax with respect imposed upon the Total Payments. Notwithstanding the foregoing provisions of this Section 7(a), if it shall be determined that the Officer is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excess Parachute Payments; provided, Excise Tax if the Total Payments were reduced by an amount that to is less than 10% of the extent any gross-up payment portion of the Total Payments that would be considered “deferred compensation” for purposes of treated as "parachute payments" under Section 409A 280G of the Code, then the manner and time of payment, and amounts payable to the provisions of Officer under this Section C.3, Agreement shall be adjusted reduced to the extent necessary (but only maximum amount that could be paid to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give Officer without giving rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be made to the Officer. The reduction of the amounts payable hereunder, if any) determined applicable, shall be made by reducing first the payment under Section 6(a), unless an alternative method of reduction is elected by the accounting firmOfficer. For purposes of reducing the Total Payments to the Safe Harbor Cap, the Company only amounts payable under this Agreement (and no other amounts) shall promptly augment the gross-up payment to address such higher Excise Tax liabilitybe reduced.

Gross-Up Payment. Payments under (i) For purposes of Section C.1. and Section C.2. 10(c), "Gross-Up Payment" means an additional amount such that the net amount retained by the Executive, after deduction of this Exhibit shall be made without regard to whether the deductibility of such payments Excise Tax (or as defined below) on any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent and/or under any gross-up payment would be considered “deferred compensation” for purposes of Section 409A option plan or agreement of the Code, Corporation received by the manner and time Executive from the Corporation as a result of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (within the “accounting firm”). Notwithstanding meaning of section 280G(b)(2) of the foregoingCode) (collectively, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than "Payments") and any federal, state and local income tax and the Excise Tax (if any) determined upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the accounting firmExecutive with respect thereto (other than such interest, penalties or additions to tax payable solely as a result of action or inaction by the Company Executive), shall promptly augment be equal to the gross-up payment total amount of the Payments. "Excise Tax" means the tax imposed by Section 4999 of the Code. For purposes of determining whether any of the Payments will be subject to address such higher the Excise Tax liability.and the amounts of such Excise Tax, (x) the total amount of the 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, except to the extent that, in the opinion of independent counsel selected by the Corporation and reasonably acceptable to the Executive ("Independent counsel"), a Payment (in whole or in part) does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, or such "excess parachute payments" (in whole or in part) are not subject to the Excise Tax; (y) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of "excess parachute payments" within the meaning of section 280G(b)

Gross-Up Payment. Payments If at any time or from time to time, it shall be determined by tax counsel mutually agreeable to DST and Executive that any payment or other benefit to Executive pursuant to this Agreement or otherwise ("Potential Parachute Payment") is or will become subject to the excise tax imposed by Section 4999 of the Code or any similar tax ("Excise Taxes"), then DST shall, subject to the limitations below, pay or cause to be paid a tax gross-up payment ("Gross-Up Payment") with respect to all such Excise Taxes and other taxes on the Gross-Up Payment. The Gross-Up Payment shall be an amount equal to the product of (a) the amount of the Excise Taxes multiplied by (b) a fraction (the "Gross-Up Multiple"), the numerator or which is one (1.0), and the denominator of which is one (1.0) minus the lesser of (i) the sum, expressed as a decimal fraction, of the effective marginal rates of any taxes and any Excise Taxes applicable to the Gross-Up Payment or (ii) .80, it being intended that the Gross-Up Multiple shall in no event exceed five (5.0). If different rates of tax are applicable to various portions of a Gross-Up Payment, the weighted average of such rates shall be used. Excise Taxes and other penalties under Section C.1. and Section C.2. 409A of the Code shall not be "any similar tax" for purposes of this Exhibit Agreement. (a) To the extent possible, any payments or other benefits to Executive pursuant to this Agreement shall be allocated as consideration for Executive's entry into the covenants made by him in Paragraph 8(a). (b) Notwithstanding any other provisions of this Paragraph 9, if the aggregate After-Tax Amount (as defined below) of the Potential Parachute Payments and Gross-Up Payment that, but for this limitation, would be payable to Executive, does not exceed 120% of After-Tax Floor Amount (as defined below), then no Gross-Up Payment shall be made without regard to whether Executive and the deductibility aggregate amount of such payments Potential Parachute Payments payable to Executive shall be reduced (or but not below the Floor Amount) to the largest amount which would both (i) not cause any other payments or benefits Excise Tax to or for the benefit be payable by Executive and (ii) not cause any Potential Parachute Payments to become nondeductible by DST by reason of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would successor provision). For purposes of the preceding sentence, Executive shall be deemed to be subject Executive to the federal excise highest effective after-tax levied on certain “excess parachute payments” under Section 4999 marginal rate of the Code (the “Excise Tax”)taxes. If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for For purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.Agreement:

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit (A) In the event it shall be made without regard to whether the deductibility of such payments determined that any payment, benefit or distribution (or any other payments combination thereof) by the Company or benefits to one or more trusts established by the Company for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits its employees, to or for the benefit of Executive (includingwhether paid or payable or distributed or distributable pursuant to the terms of this Agreement, but not limited toor otherwise) (a “Payment”) is subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, payments together with any such interest and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being penalties, hereinafter collectively referred to as the “Excess Parachute Excise Tax”), Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 4(i), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payment does not exceed 110% of the greatest amount that could be paid to Executive without giving rise to any Excise Tax (the “Safe Harbor Amount”), then no Gross-Up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, is reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 4(h). (B) All determinations required to be made under this Section 4(i), including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by an independent accounting firm selected by the Company (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Executive within ten business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company; provided that for purposes of determining the amount of any Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest effective rates applicable to individuals in the state or locality of Executive’s residence or place of employment in the calendar year in which any such Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account limitations applicable to individuals subject to federal income tax at the highest marginal rates. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 4(i), shall be paid by the Company to Executive (or to the appropriate taxing authority on Executive’s behalf) when the applicable tax is due. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall so indicate to Executive in writing. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that the amount of the Gross-Up Payment determined by the Accounting Firm to be due to (or on behalf of) Executive was lower than the amount actually due (“Underpayment”). In the event that the Company exhausts its remedies pursuant to Section 4(i)(C) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive. (C) Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the thirty day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order to effectively contest such claim and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 4(i)(C), the Company shall promptly control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, further, that if the Company directs Executive to pay such claim and ▇▇▇ for a refund, the Company shall advance the amount of such payment to Executive, on an additional amount (the “grossinterest-up payment”) that after reduction for all taxes free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including but not limited to the Excise Taxinterest or penalties with respect thereto) imposed with respect to such gross-up payment equals the Excise Tax advance or with respect to the Excess Parachute Paymentsany imputed income with respect to such advance; provided, further, that if Executive is required to extend the statute of limitations to enable the Company to contest such claim, Executive may limit this extension solely to such contested amount. The Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (D) If, after the receipt by Executive of an amount paid or advanced by the Company pursuant to this Section 4(i), Executive becomes entitled to receive any refund with respect to a Gross-Up Payment, Executive shall (subject to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply Company’s complying with the requirements of Section 409A 4(i)(C)) promptly pay to the Company the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 4(i)(C), a determination is made that Executive shall not be entitled to any refund with respect to such payment so that claim and the payment Company does not give rise notify Executive in writing of its intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) expiration of the Code (the “Section 409A penalties”); thirty days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform be repaid and the amount of such advance shall offset, to the requirements of Section 409A of the Codeextent thereof, the amount of the grossGross-up payment shall Up Payment required to be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilitypaid.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of Anything in this Exhibit Agreement to the contrary notwithstanding, following a Change in Control, if it shall be made without regard to whether determined by the deductibility of such payments Accounting Firm (as contemplated by Section 6(b) below) that any payment or distribution by the Surviving Entity or any other payments or benefits of its affiliates to or for the benefit of the Executive) , whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including, without limitation, any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”), would be limited an “excess parachute payment” with respect to which the Executive would be subject to the excise tax imposed by Section 4999 of the Code (or precluded any successor provision thereto) by reason of being considered “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments successor provision thereto) or benefits) would subject Executive to the federal excise any similar tax levied on certain “excess parachute payments” under Section 4999 of the Code imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereafter collectively referred to as the “Excise Tax”). , then: (1) If any portion the Total Parachute Payments do not exceed the Trigger Amount, then the payments and benefits to be made or provided under this Agreement to the Executive shall be reduced (reducing or eliminating the earliest payments first) by the least amount necessary, but not in excess of 20% of the payments or and benefits to be made and provided under this Agreement, such that no Payment will be subject to Excise Tax. If the elimination of 20% of the payments and benefits to be made or for provided under this Agreement that would otherwise be subject to the benefit Excise Tax is not sufficient to avoid the Excise Tax, then 20% of the payments and benefits provided under this Agreement shall be eliminated and the Executive shall be entitled to receive a Gross-Up Payment; provided, however, that no Gross-up Payment shall be made with respect to the Excise Tax, if any, attributable to any incentive stock option, as defined by Section 422 of the Code, granted prior to the execution of the Agreement. The Gross-Up Payment shall be in an amount such that, after payment by the Executive of all taxes (including, but not limited to, any federal, state or local income taxes, Excise Taxes, FICA and Medicare withholding taxes and interest or penalties imposed with respect to such taxes), including any Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment as determined after the elimination of 20% of the payments and benefits under as provided by this Agreement but determined without regard Section 6(a)(1). (2) If the Total Parachute Payments exceed the Trigger Amount, then the Executive shall be entitled to this paragraph) constitutes receive an additional payment or payments (collectively, a “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute PaymentsGross-Up Payment”); provided, the Company shall promptly pay to Executive an additional amount (the “grosshowever, that no Gross-up payment”) that after reduction for all taxes (including but not limited Payment shall be made with respect to the Excise Tax) , if any, attributable to any incentive stock option, as defined by Section 422 of the Code, granted prior to the execution of the Agreement. The Gross-Up Payment shall be in an amount such that, after payment by the Executive of all taxes (including, but not limited to, any federal, state or local income taxes, Excise Taxes, FICA and Medicare withholding taxes and interest or penalties imposed with respect to such grosstaxes), including any Excise Tax imposed upon the Gross-up payment equals Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax with respect to imposed upon the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityPayment.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit shall be made without regard to whether (a) Whether or not the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive becomes entitled to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If Severance Amount, if any portion of the payments or benefits received or to be received by the Executive in connection with a Change in Control or for the benefit Executive's termination of Executive employment (including, but not limited to, payments and benefits under whether pursuant to the terms of this Agreement but determined without regard to this paragraphor any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments or benefits, excluding the Gross-Up Payment, being hereinafter referred to as the “Excess Parachute "Total Payments”)") will be subject to the Excise Tax, the Company shall promptly pay to the Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (b) 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) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Internal Revenue Code of 1986, as amended from time to time (the "Code")) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's independent auditor (the "Auditor"), such 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, (ii) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for all taxes services actually rendered (including but 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 limited subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 10), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) 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, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross- Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction) 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 Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such gross-up payment equals excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Excess Parachute Total Payments. (d) The payment provided in this Section 10 shall be made not later than the tenth (10th) day following the Date of Termination; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further providedhowever, that if, notwithstanding if the immediately preceding proviso, the gross-up amount of such payment cannot be made to conform finally determined on or before such day, the Company shall pay to the requirements Executive on such day an estimate, as determined in accordance with this Section 10 of Section 409A the minimum amount of such payment to which the Executive is clearly entitled and shall pay the remainder of such payment (together with interest on the unpaid remainder (or on all such payments to the extent the Company fails to make such payments when due) at 120% of the rate provided in section 1274(b)(2)(B) of the Code, ) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. In the event that the amount of the gross-up estimated payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at 120% of such payments, the amount rate provided in section 1274(b)(2)(B) of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”Code). Notwithstanding At the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability time that is higher than the Excise Tax (if any) determined by the accounting firmpayments are made under this Section 10, the Company shall promptly augment provide the gross-up payment Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to address such higher Excise Tax liabilitythe statement).

Gross-Up Payment. Payments In the event that any payments to which Employee becomes entitled under Section C.1. and Section C.2. of this Exhibit shall Employment Agreement (the "Agreement Payments") will be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under (the "Excise Tax") imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed), the “Company shall pay to Employee at the time specified below, an additional amount (the "Gross-Up Payment") such that the net amount retained by Employee (taking into account the Total Payments (as hereinafter defined) and the Gross-Up Payment), after deduction of any Excise Tax on the Total Payments and any federal, state and local income tax and Excise Tax upon the Gross-Up Payment provided for by this Section 15, but before deduction for any federal, state or local income tax on the Total Payments, shall be equal to the "Total Payments," as defined below. Except as otherwise provided below, the Gross-Up Payment or portion thereof provided for in this Section 15 shall be paid not later than the thirtieth (30th) day following payment of any amounts under the Employment Agreement that will be subject to the Excise Tax”; provided, however, that if the amount of such Gross-Up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined, but in no event later than the forty-fifth (45th) day after payment of any amounts under the Employment Agreement that will be subject to the Excise Tax. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Employee, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If For purposes of determining whether any portion of the payments Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments, accruals, vestings or other compensatory benefits received or to be received by Employee in connection with a Change in Control of the Company or for the benefit termination of Executive Employee's employment (including, but not limited to, payments and benefits under whether pursuant to the terms of this Agreement but determined without regard to this paragraphor 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 (which, together with the Agreement Payments, shall constitute the "Total Payments") constitutes an “excess shall be treated as "parachute payment” payments" within the meaning of Section 280G 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, unless, in the opinion of tax counsel selected by the Company's independent auditors, such other payments or benefits (in whole or in part) represent reasonable compensation for services actually rendered within the aggregate meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (a) the total amount of the Total Payments, or (b) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i) above), and (iii) the value of any 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 Code. For purposes of determining the amount of the Gross-Up Payment, Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made and the applicable state and local income taxes at the highest 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 payments state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-Up Payment is made, Employee shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the portion of the Gross-Up Payment being hereinafter referred repaid) if such repayment results in a reduction in Excise Tax and/or a federal, state and local income tax deduction, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to as exceed the “Excess Parachute Payments”amount taken into account hereunder at the time the Gross-Up Payment is made (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 promptly pay to Executive make an additional amount (the “gross-up payment”) that after reduction for all taxes payment in respect of such excess (including but not limited to the Excise Tax) plus any interest payable with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that excess is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityfinally determined.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of Anything in this Exhibit shall be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive Agreement to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of contrary notwithstanding and except as set forth below, in the Code event that a Payment (as defined below) is received by the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (includingthat, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G of the Code, is contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company (a “280G Transaction”) with regard to a 280G Transaction that occurs on or prior to the aggregate third anniversary of the IPO Date and the Accounting Firm (as defined below) shall determine that receipt of such payments being hereinafter referred Payment would subject the Executive to the Excise Tax (as the “Excess Parachute Payments”defined below), then the Company Executive shall promptly pay be entitled to Executive receive an additional amount payment (the “grossGross-up paymentUp Payment”) that in an amount such that, after reduction for payment by the Executive of all taxes (including but not limited to the Excise Tax) and any interest or penalties imposed with respect to such gross-up payment equals the taxes), including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax with respect imposed upon the Gross-Up Payment, but excluding any income taxes and penalties imposed pursuant to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time Executive retains an amount of payment, and the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section C.38(a), if it shall be determined that the Executive is entitled to the Gross-Up Payment, but that the Parachute Value (as defined below) of all Payments does not exceed 110% of the Safe Harbor Amount (as defined below), then no Gross-Up Payment shall be made to the Executive and the Agreement Payments (as defined below) shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the Agreement Payments, if applicable, shall be adjusted to made by reducing the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess under the following sections of this Agreement in the following order: first from Section 5(a)(i)(B), then from Section 5(a)(iii), then from Section 5(a)(iv) and lastly from Section 5(a)(ii). For purposes of reducing the Payments to the Safe Harbor Amount, only Agreement Payments (and no other Payments) shall be reduced. If the reduction of the Agreement Payments would not result in a reduction of the Parachute Value of all Payments andto the Safe Harbor Amount, if so, then there shall be no reduction in the amount of such payments, the amount of any Excise Tax owed with respect thereto, Agreement Payments pursuant to this Section 8(a) and the amount of any gross-up payment Executive shall be made at entitled to the Gross-Up Payment. The Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as obligation to make Gross-Up Payments under this Section 8(a) shall not be conditioned upon the Committee may designate prior to a Change Executive’s termination of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityemployment.

Gross-Up Payment. Payments under If at any time or from time to time, it shall be determined by DST's independent auditors that any payment or other benefit to Executive pursuant to this Agreement or otherwise ("Potential Parachute Payment") is or will become subject to the excise tax imposed by Section C.14999 of the Code or any similar tax ("Excise Taxes"), then DST shall, subject to the limitations below, pay or cause to be paid a tax gross-up payment ("Gross-Up Payment") with respect to all such Excise Taxes and other taxes on the Gross-Up Payment. The Gross-Up Payment shall be an amount equal to the product of (a) the amount of the Excise Taxes multiplied by (b) a fraction (the "Gross-Up Multiple"), the numerator or which is one (1.0), and Section C.2the denominator of which is one (1.0) minus the lesser of (i) the sum, expressed as a decimal fraction, of the effective marginal rates of any taxes and any Excise Taxes applicable to the Gross-Up Payment or (ii) .80, it being intended that the Gross-Up Multiple shall in no event exceed five (5.0). If different rates of tax are applicable to various portions of a Gross-Up Payment, the weighted average of such rates shall be used. (a) To the extent possible, any payments or other benefits to Executive pursuant to this Agreement shall be allocated as consideration for Executive's entry into the covenants made by him in Paragraph 8(a). (b) Notwithstanding any other provisions of this Exhibit Paragraph 9, if the aggregate After-Tax Amount ( as defined below) of the Potential Parachute Payments and Gross-Up Payment that, but for this limitation, would be payable to Executive, does not exceed 120% of After-Tax Floor Amount (as defined below), then no Gross-Up Payment shall be made without regard to whether Executive and the deductibility aggregate amount of such payments Potential Parachute Payments payable to Executive shall be reduced (or but not below the Floor Amount) to the largest amount which would both (i) not cause any other payments or benefits Excise Tax to or for the benefit be payable by Executive and (ii) not cause any Potential Parachute Payments to become nondeductible by DST by reason of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would successor provision). For purposes of the preceding sentence, Executive shall be deemed to be subject Executive to the federal excise highest effective after-tax levied on certain “excess parachute payments” under Section 4999 marginal rate of the Code (the “Excise Tax”)taxes. If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for For purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.Agreement:

Gross-Up Payment. Payments under Section C.1. In the event that the Executive becomes entitled to the severance benefits described in Sections 5(a) and Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (5(b) or any other benefits or payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (under this Agreement or any other payments agreement, plan, instrument or benefitsobligation in whatever form of the Company or its subsidiaries or affiliates (other than pursuant to this Section) would including by reason of the accelerated vesting of stock options or restricted stock hereunder or thereunder (together, the “Total Benefits”), and in the event that any of the Total Benefits will be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code Section 4999 of the Code 4999, including interest, penalties or other excise tax thereon (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to the Executive an additional amount (the “grossGross-up paymentUp Payment”) such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Tax and FICA and Medicare withholding taxes upon the payment provided for by this Section, shall be equal to the Total Benefits. For purposes of determining whether any of the Total Benefits will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or benefits received or to be received by the Executive in connection with a Change in Control or the Executive’s termination of employment (whether pursuant to the terms of this Agreement or any other agreement, plan or arrangement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all taxes (including but not limited “excess parachute payments” within the meaning the Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel (“Tax Counsel”) with respect to such gross-up payment equals selected by the Excise Tax with respect Company’s independent auditors and acceptable to the Excess Parachute Payments; providedExecutive, that to 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 extent any gross-up payment would be considered “deferred compensation” for purposes meaning of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4280G(b)(4) of the Code in excess of the Base Amount (as defined in the “Section 409A penalties”Code); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canor are otherwise not be made to conform subject to the requirements of Section 409A of the CodeExcise Tax, (ii) the amount of the gross-up payment Total Benefits which shall be determined without regard treated as subject to any gross-up for the Section 409A penalties. The determination as Excise Tax shall be equal to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the lesser of (A) the total amount of the Total Benefits reduced by the amount of such Total Benefits that in the opinion of Tax Counsel are not parachute payments, or (B) the amount of any Excise Tax owed with respect theretoexcess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i), above), and (iii) the value of any 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 Code. For purposes of determining the amount of any grossthe Gross-up payment Up Payment, the Executive shall be made deemed to pay federal income taxes at the Companyhighest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s expense residence on the date of termination, net of the reduction in federal income taxes which could be obtained from deduction of such state and local taxes (calculated by PricewaterhouseCoopers LLP or by assuming that any reduction under Section 68 of the Code in the amount of itemized deductions allowable to the Executive applies first to reduce the amount of such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability state and local income taxes that is higher than the Excise Tax (if any) determined would otherwise be deductible by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityExecutive).

Gross-Up Payment. Payments (i) To the extent that any (a) severance payment, (b) transaction or other bonus payment, (c) payment under any transaction or other incentive plan, (d) payment related to equity or made under an equity incentive program, or (e) other amounts or payments of any type or kind whatsoever, in the nature of compensation (within the meaning of Section C.1. 280G of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder (“Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (280G”)) or any other payments or benefits otherwise to or for the benefit of Executive) would be limited the Executive under this Agreement, or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments any other agreement or plan, or otherwise (or any part of such amount or other payments or benefitspayment) would subject Executive to the federal excise tax levied on certain (collectively, “excess parachute payments” under Section 4999 of the Code (the “Excise TaxPayments”). If , in any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) case constitutes an “excess parachute payment” within the meaning of Section 280G and Section 4999 of the Internal Revenue Code (“Section 4999”). then the aggregate Company shall pay to the Executive an additional sum (“Gross-Up Payment”) such that, after all taxes applicable to the receipt of such payments being hereinafter referred amount have been subtracted therefrom, the remaining amount will equal the sum of the amount of tax imposed with respect to as the “Excess Parachute Payments”excess parachute payments,” plus any interest and penalties thereon (other than those caused solely by Executive’s action or inaction). Therefore, the effect shall be to maintain the Executive in the same financial position that he would have been in had no tax under Section 4999 been imposed. All payments and reimbursements to which the Executive is entitled under this Section 11 shall be made not later than April 15 of the taxable year of the Executive next following the taxable year of the Executive in which the Executive receives amounts subject to Section 4999. (ii) Notwithstanding the immediately preceding paragraph, in the event that a reduction to the Payments in respect of the Executive of 10% or less, but not more than $250,000, would cause none of the Payments to be “excess parachute payments,” the Executive will not be entitled to a Gross-Up Payment and the Payments shall be reduced to the extent necessary so that none of the Payments shall be “excess parachute payments.” Unless the Executive shall have given prior written notice to the Company specifying a different order by which to effectuate the foregoing, the Company shall promptly pay reduce or eliminate the Payments (x) by first reducing or eliminating the portion of the Payments which are not payable in cash (other than that portion of the Payments subject to clause (z) hereof), (y) then by reducing or eliminating cash payments (other than that portion of the Payments subject to clause (z) hereof) and (z) then by reducing or eliminating the portion of the Payments (whether payable in cash or not payable in cash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the date of the Change in Control. Any notice given by the Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited pursuant to the Excise Taxpreceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation. (iii) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the The provisions of this Section C.311 shall expire, and shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest no further force or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further providedeffect, that ifon December 31, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability2010.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit (i) In the event it shall be made without regard to whether finally determined, in a proceeding that is non-appealable, that any payment, award, benefit or distribution by the deductibility of such payments Parent (or any other payments or benefits of its affiliated entities) to or for the benefit of Executive) would be limited the Executive (whether pursuant to the terms of this Agreement or precluded by Section 280G of the Code (“Section 280G”) and otherwise, but determined without regard to whether such any additional payments required under this Section 24(k) (or any other payments or benefitsa “Payment”) would is subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or any corresponding provisions of state or local tax laws, 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”). If , 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 portion interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes or employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the payments or benefits Gross-Up Payment equal to the Excise Tax imposed upon the Payments. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that Gross-Up Payments which will not have been made by the Parent should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Parent exhausts its remedies pursuant to Section 24(k)(ii) and the Executive thereafter is required to make a payment of any Excise Tax, any such Underpayment shall be promptly paid by the Parent to or for the benefit of the Executive. (ii) The Executive shall notify the Parent in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Parent of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph10) constitutes an “excess parachute payment” within business days after the meaning of Section 280G (the aggregate Executive is informed in writing of such payments being hereinafter referred claim and shall apprise the Parent of the nature of such claim and the date on which such claim is requested to as the “Excess Parachute Payments”), the Company be paid. The Executive shall promptly not pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited such claim prior to the Excise Tax) expiration of the 30-day period following the date on which it gives such notice to the Parent (or such shorter period ending on the date that any payment of taxes with respect to such gross-up payment equals claim is due). If the Excise Tax Parent notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Parent any information reasonably requested by the Parent relating to such claim; (B) take such action in connection with contesting such claim as the Parent shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Excess Parachute PaymentsParent; (C) cooperate with the Parent in good faith in order effectively to contest such claim; and (D) permit the Parent to participate in any proceedings relating to such claim; provided, however, that to the extent Parent shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any gross-up Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment would be considered “deferred compensation” for purposes of Section 409A of costs and expenses. Without limitation on the Code, the manner and time of payment, and the foregoing provisions of this Section C.3paragraph, the Parent shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Parent shall determine. provided, however, that if the Parent directs the Executive to pay such claim and ▇▇▇ for a refund, the Parent shall advance the amount of such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Parent’s control of the contest shall be adjusted limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (iii) If, after the receipt by the Executive of an amount advanced by the Parent pursuant to Section 24(k)(ii), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the extent necessary (but only to the extent necessary) to comply Parent’s complying with the requirements of Section 409A 24(k)(ii)) promptly pay to the Parent the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Parent pursuant to Section 24(k)(ii), a determination is made that the Executive shall not be entitled to any refund with respect to such payment so that claim and the payment Parent does not give rise notify the Executive in writing of its intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) expiration of the Code (the “Section 409A penalties”); 30 days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform be repaid and the amount of such advance shall offset, to the requirements of Section 409A of the Codeextent thereof, the amount of the grossGross-up payment shall Up Payment required to be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilitypaid.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit (a) In the event it shall be made without regard to whether the deductibility determined that any payment or distribution of such payments (or any other payments or benefits type to or for the benefit of the Executive) would be limited , by the Company, any Affiliate, any person who acquires ownership or precluded by Section 280G effective control of the Code (“Section 280G”) and without regard to whether such payments (Company or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 ownership of the Code (the “Excise Tax”). If any a substantial portion of the payments or benefits to or for the benefit of Executive Company's assets (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the aggregate "Code"), and the regulations thereunder) or any Affiliate of such payments being hereinafter person, whether paid or payable or distributed or distributable pursuant to any of the terms of this Agreement or otherwise (the "Total Payments"), is or will be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the “Excess Parachute Payments”"Excise Tax"), then the Company Executive shall promptly pay be entitled to Executive receive an additional payment (a "Gross-Up Payment") in an amount (the “gross-up payment”) such that after reduction for payment by the Executive of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including any income tax, employment tax or Excise Tax, imposed upon the Gross Up Payment, the Executive retains an amount of the Gross-up payment equals Up Payment equal to the Excise Tax with respect imposed upon the Total Payments. (b) All mathematical determinations, and all determinations as to whether any of the Excess Parachute Payments; provided, that to Total Payments are "parachute payments" (within the extent any gross-up payment would be considered “deferred compensation” for purposes meaning of Section 409A 280G of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot are required to be made to conform to the requirements of Section 409A of the Codeunder this Subparagraph (b), the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination including determinations as to whether Executive’s payments and benefits include Excess Parachute Payments and, if soa Gross-Up Payment is required, the amount of such paymentsGross-Up Payment and amounts relevant to the last sentence of this Subparagraph (b), shall be made by an independent accounting firm selected by the Executive from among the five (5) largest accounting firms in the United States (the "Accounting Firm"), which shall provide its determination (the "Determination"), together with detailed supporting calculations regarding the amount of any Gross-Up Payment and any other relevant matter, both to the Company and the Executive by no later than ten (10) days following the Change in Control, or such earlier time as is requested by the Company or the Executive (if the Executive reasonably believes that any of the Total Payments may be subject to the Excise Tax). If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive and the Company with a written statement that such Accounting Firm has concluded that no Excise Tax is payable (including the reasons therefor) and that the Executive has substantial authority not to report any Excise Tax on his federal income tax return. If a Gross-Up Payment is determined to be payable, it shall be paid to the Executive within twenty (20) days after the Determination (and all accompanying calculations and other material supporting the Determination) is delivered to the Company by the Accounting Firm. Any determination by the Accounting Firm shall be binding upon the Company and the Executive, absent manifest error. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments not made by the Company should have been made ("Underpayment"), or that Gross-Up Payments will have been made by the Company which should not have been made ("Overpayments"). In either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Underpayment, the amount of any Excise Tax owed with respect theretosuch Underpayment shall be promptly paid by the Company to or for the benefit of the Executive. In the case of an Overpayment, the Executive shall, at the direction and expense of the Company, take such steps as are reasonably necessary (including the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, the Company, and otherwise reasonably cooperate with the Company to correct such Overpayment, provided, however, that (i) the Executive shall not in any event be obligated to return to the Company an amount greater than the net after-tax portion of any gross-up payment the Overpayment that he has retained or has recovered as a refund from the applicable taxing authorities and (ii) this provision shall be made at interpreted in a manner consistent with the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as intent of this Paragraph 10 of Section B, which is to make the Committee Executive whole, on an after-tax basis, from the application of the Excise Tax, it being understood that the correction of an Overpayment may designate prior result in the Executive repaying to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert Company an Excise Tax liability that amount which is higher less than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityOverpayment.

Gross-Up Payment. Payments under In the event that any payment pursuant to this Letter Agreement or any other agreement will be subject to the tax (the "Excise Tax") imposed by Section C.1. 4999 of the Internal Revenue Code of 1986 ("Code") or any successor or similar provision, the Company shall pay you an additional amount (the "Gross-Up Payment") such that the net amount retained by you after deduction of any Excise Tax on such payments (excluding payments pursuant to this paragraph 9), and Section C.2. of after deduction for any federal, state and local income tax and Excise Tax upon the payment provided for by this Exhibit paragraph, shall be made without regard equal to whether the deductibility amount of such payments (or excluding payments pursuant to this paragraph 9) before payment of any other 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 and the amount of such Excise Tax, any payments or benefits received or to be received by you in connection with a Change of Control or for the benefit your termination of Executive) would employment shall be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess treated as "parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” " within the meaning of Section 280G (of the aggregate Code, and all "excess parachute payments" within the meaning of Section 280G of the Code 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 you such payments or benefits do not constitute parachute payments or excess parachute payments. For purposes of determining the amount of the Gross-Up Payment, you shall be deemed to pay all federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of your 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. 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 being hereinafter referred hereunder equal the Excise Tax Compensation Net Payment, plus interest on the amount of such repayment at a rate equivalent to as the “Excess Parachute Payments”)rate described in Section 280G (d) (4) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of your employment, the Company shall promptly pay to Executive make an additional amount Gross-Up Payment in respect of such excess (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) plus any interest payable with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that excess is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityfinally determined.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit (i) In the event it shall be made without regard to whether finally determined, in a proceeding that is non-appealable, that any payment, award, benefit or distribution by the deductibility of such payments Parent (or any other payments or benefits of its affiliated entities) to or for the benefit of Executive) would be limited the Executive (whether pursuant to the terms of this Agreement or precluded by Section 280G of the Code (“Section 280G”) and otherwise, but determined without regard to whether such any additional payments required under this Section 24(k) (or any other payments or benefitsa "Payment") would is subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code") or any corresponding provisions of state or local tax laws, 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”"). If , 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 portion interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes or employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the payments or benefits Gross-Up Payment equal to the Excise Tax imposed upon the Payments. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that Gross-Up Payments which will not have been made by the Parent should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Parent exhausts its remedies pursuant to Section 24(k)(ii) and the Executive thereafter is required to make a payment of any Excise Tax, any such Underpayment shall be promptly paid by the Parent to or for the benefit of the Executive. (ii) The Executive shall notify the Parent in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Parent of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph10) constitutes an “excess parachute payment” within business days after the meaning of Section 280G (the aggregate Executive is informed in writing of such payments being hereinafter referred claim and shall apprise the Parent of the nature of such claim and the date on which such claim is requested to as the “Excess Parachute Payments”), the Company be paid. The Executive shall promptly not pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited such claim prior to the Excise Tax) expiration of the 30-day period following the date on which it gives such notice to the Parent (or such shorter period ending on the date that any payment of taxes with respect to such gross-up payment equals claim is due). If the Excise Tax Parent notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Parent any information reasonably requested by the Parent relating to such claim; (B) take such action in connection with contesting such claim as the Parent shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Excess Parachute PaymentsParent; (C) cooperate with the Parent in good faith in order effectively to contest such claim; and (D) permit the Parent to participate in any proceedings relating to such claim; provided, however, that to the extent Parent shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any gross-up Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment would be considered “deferred compensation” for purposes of Section 409A of costs and expenses. Without limitation on the Code, the manner and time of payment, and the foregoing provisions of this Section C.32(b), the Parent shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Parent shall determine. provided, however, that if the Parent directs the Executive to pay such claim and ▇▇▇ for a refund, the Parent shall advance the amount of such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Parent's control of the contest shall be adjusted limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (iii) If, after the receipt by the Executive of an amount advanced by the Parent pursuant to Section 24(k)(ii), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the extent necessary (but only to the extent necessary) to comply Parent's complying with the requirements of Section 409A 24(k)(ii)) promptly pay to the Parent the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Parent pursuant to Section 24(k)(ii), a determination is made that the Executive shall not be entitled to any refund with respect to such payment so that claim and the payment Parent does not give rise notify the Executive in writing of its intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) expiration of the Code (the “Section 409A penalties”); 30 days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform be repaid and the amount of such advance shall offset, to the requirements of Section 409A of the Codeextent thereof, the amount of the grossGross-up payment shall Up Payment required to be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilitypaid.

Gross-Up Payment. Payments under Section C.1. and Section C.2. If there is a change in ownership or control of MF Global that causes any payment or distribution by any member of the MF Global Group or any other person or entity to you or for your benefit (whether paid or payable or distributed or distributable pursuant to the terms of this Exhibit shall be made Agreement or otherwise, but determined without regard to whether the deductibility of such any additional payments required under this Section 9) (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (a “Section 280GPayment”) and without regard to whether such payments (or any other payments or benefits) would be subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Code (such excise tax, together with any interest or penalties incurred by you with respect to such excise tax, the “Excise Tax”). If any portion of the payments or benefits , then you shall be entitled to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive receive an additional amount payment (the a “grossGross-up paymentUp Payment”) in an amount such that after reduction for payment by you of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-up payment equals Up Payment, you will retain an amount of the Gross-Up Payment equal to the Excise Tax with respect to imposed upon the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if it is determined that you are entitled to a Gross-Up Payment but that the Internal Revenue Service shall assert an Payments would not be subject to the Excise Tax liability if the Payments were reduced by an amount that is higher less than 10% of the Payments, then the Payments will be reduced to the maximum amount that would not result in the imposition of the Excise Tax (the “Safe Harbor Amount”). If a reduction in the Payments is necessary so that the Payments equal the Safe Harbor Amount and none of the Payments is Nonqualified Deferred Compensation, then the reduction shall occur in the manner you elect in writing prior to the date of payment. If any Payment constitutes Nonqualified Deferred Compensation or if any) you fail to elect an order, then the payments to be reduced will be determined by in a manner which has the accounting firmleast economic cost to you and, to the Company shall promptly augment extent the gross-up economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to address such higher Excise Tax liabilityyou, until the reduction is achieved.

Gross-Up Payment. Payments under (a) To the extent that any amounts or payments in the nature of compensation (within the meaning of Section C.1. 280G of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder (“Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (or any other payments or benefits 280G”)) to or for the benefit of Executive) would be limited the Employee under this Employment Agreement or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments otherwise (or any part of such amount or other payments or benefitspayment) would subject Executive to the federal excise tax levied on certain (collectively, “excess parachute payments” under Section 4999 of the Code (the “Excise TaxPayments”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G and Section 4999 of the Internal Revenue Code (“Section 4999”), then the aggregate Company shall pay to the Employee an additional sum (“Gross-Up Payment”) such that, after all taxes applicable to the receipt of such payments being hereinafter referred amount have been subtracted therefrom, the remaining amount will equal the sum of the amount of tax imposed with respect to as the “Excess Parachute Payments”excess parachute payment,” plus any interest and penalties thereon (other than those caused solely by Employee’s action or inaction). Therefore, the effect shall be to maintain the Employee in the same financial position that he would have been in had no tax under Section 4999 been imposed. All payments and reimbursements to which the Employee is entitled under this Section 11 shall be made not later than April 15 of the taxable year of the Employee next following the taxable year of the Employee in which the Employee receives amounts subject to Section 4999. (b) Notwithstanding the immediately preceding paragraph, in the event that a reduction to the Payments in respect of the Employee of 10% or less, but not more than $200,000, would cause none of the Payments to be “excess parachute payments,” the Employee will not be entitled to a Gross-Up Payment and the Payments shall be reduced to the extent necessary so that none of the Payments shall be “excess parachute payments.” Unless the Employee shall have given prior written notice to the Company specifying a different order by which to effectuate the foregoing, the Company shall promptly pay reduce or eliminate the Payments (x) by first reducing or eliminating the portion of the Payments which are not payable in cash (other than that portion of the Payments subject to Executive an additional amount clause (z) hereof), (y) then by reducing or eliminating cash payments (other than that portion of the “gross-up payment”Payments subject to clause (z) that after reduction for all taxes hereof) and (including but z) then by reducing or eliminating the portion of the Payments (whether payable in cash or not limited payable in cash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the date of the Change in Control. Any notice given by the Employee pursuant to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and preceding sentence shall take precedence over the provisions of this Section C.3any other plan, shall be adjusted to arrangement or agreement governing the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); Employee’s rights and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard entitlements to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilitycompensation.

Gross-Up Payment. Payments under Section C.1. and Section C.2. 4.1 Regardless of this Exhibit shall be made without regard whether Executive becomes entitled to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or under this Agreement, if any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits received or to or for the benefit of be received by Executive (includingwhether pursuant to the terms of this Agreement or any other plan, but not limited to, arrangement or agreement with any System Company) (all such payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within benefits, excluding the meaning of Section 280G (the aggregate of such payments Gross-Up Payment, being hereinafter referred to as the “Excess Parachute "Total Payments”)") will be subject to the Excise Tax, the Company shall promptly pay to Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. 4.2 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) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b) (2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the Closing, Company's independent auditor (the "Auditor"), such 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, (ii) all "excess parachute payments" within the meaning of section 280G(b) (I) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for all taxes services actually rendered (including but 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 limited subject to the Excise Tax, and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d) (3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 4), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. 4.3 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, Executive shall repay to Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in Executive'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 12 74(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 Gross-Up Payment), Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Executive with respect to such gross-up payment equals excess) within five (5) business days following the time that the amount of such excess is finally determined. Executive and Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Excess Parachute Total Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of In the event that any payment pursuant to this Exhibit shall be made without regard to whether the deductibility of such payments (agreement or any other payments or benefits to or for the benefit of Executive) would agreement will be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986 (“Code”) or any successor or similar provision, the Companies shall pay Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive after deduction of any Excise Tax on such payments (excluding payments pursuant to this paragraph 9), and after deduction for any federal, state and local income tax and Excise Tax upon the payment provided for by this paragraph, shall be equal to the amount of such payments (excluding payments pursuant to this paragraph 9) before payment of any Excise Tax (hereinafter the “Excise Tax Compensation Net Payment”). If For purposes of determining whether any portion of such payments will be subject to the Excise Tax and the amount of such Excise Tax, any payments or benefits received or to be received by Executive in connection with a Change of Control or for the benefit Executive’s termination of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an employment shall be treated as “excess parachute paymentpayments” within the meaning of Section 280G (of the aggregate Code, and all “excess parachute payments” within the meaning of such payments being hereinafter referred to Section 280G of the Code shall be treated as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company’s independent auditors and acceptable to Executive such payments or benefits do not constitute parachute payments or excess parachute payments. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay all federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality in which Executive is taxed on the payments giving rise to the Gross-Up Payment, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, Executive shall repay to the Companies, 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 (d) (4) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Companies shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such paymentsexcess 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 are made, or, if and to the extent such payment is not known or calculable as of such date, as soon as the amount of any Excise Tax owed with respect thereto, is known and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilitycalculable.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit (A) In the event it shall be made without regard to whether the deductibility of such payments determined that any payment, benefit or distribution (or any other payments combination thereof) by the Company or benefits to one or more trusts established by the Company for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits its employees, to or for the benefit of Executive (includingwhether paid or payable or distributed or distributable pursuant to the terms of this Agreement, but not limited toor otherwise) (a "Payment") is subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, payments together with any such interest and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being penalties, hereinafter collectively referred to as the “Excess Parachute "Excise Tax"), Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments”. Notwithstanding the foregoing provisions of this Section 4(i), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payment does not exceed 110% of the greatest amount that could be paid to Executive without giving rise to any Excise Tax (the "Safe Harbor Amount"), then no Gross-Up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, is reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 4(h). (B) All determinations required to be made under this Section 4(i), including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by an independent accounting firm selected by the Company (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and Executive within ten business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company; provided that for purposes of determining the amount of any Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest effective rates applicable to individuals in the state or locality of Executive's residence or place of employment in the calendar year in which any such Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account limitations applicable to individuals subject to federal income tax at the highest marginal rates. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 4(i), shall be paid by the Company to Executive (or to the appropriate taxing authority on Executive's behalf) when the applicable tax is due. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall so indicate to Executive in writing. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that the amount of the Gross-Up Payment determined by the Accounting Firm to be due to (or on behalf of) Executive was lower than the amount actually due ("Underpayment"). In the event that the Company exhausts its remedies pursuant to Section 4(i)(C) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive. (C) Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the thirty day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order to effectively contest such claim and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 4(i)(C), the Company shall promptly control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and sue for a refund or contest the claim in any perm▇▇▇ible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, further, that if the Company directs Executive to pay such claim and sue for a refund, the Company shall advance the a▇▇▇nt of such payment to Executive, on an additional amount (the “grossinterest-up payment”) that after reduction for all taxes free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including but not limited to the Excise Taxinterest or penalties with respect thereto) imposed with respect to such gross-up payment equals the Excise Tax advance or with respect to the Excess Parachute Paymentsany imputed income with respect to such advance; provided, further, that if Executive is required to extend the statute of limitations to enable the Company to contest such claim, Executive may limit this extension solely to such contested amount. The Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (D) If, after the receipt by Executive of an amount paid or advanced by the Company pursuant to this Section 4(i), Executive becomes entitled to receive any refund with respect to a Gross-Up Payment, Executive shall (subject to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply Company's complying with the requirements of Section 409A 4(i)(C)) promptly pay to the Company the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 4(i)(C), a determination is made that Executive shall not be entitled to any refund with respect to such payment so that claim and the payment Company does not give rise notify Executive in writing of its intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) expiration of the Code (the “Section 409A penalties”); thirty days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform be repaid and the amount of such advance shall offset, to the requirements of Section 409A of the Codeextent thereof, the amount of the grossGross-up payment shall Up Payment required to be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilitypaid.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit (i) In the event it shall be made without regard to whether finally determined, in a proceeding that is non-appealable, that any payment, award, benefit or distribution by the deductibility of such payments Parent (or any other payments or benefits of its affiliated entities) to or for the benefit of Executive) would be limited the Executive (whether pursuant to the terms of this Agreement or precluded by Section 280G of the Code (“Section 280G”) and otherwise, but determined without regard to whether such any additional payments required under this Section 24(k) (or any other payments or benefitsa "Payment") would is subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code") or any corresponding provisions of state or local tax laws, 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”"). If , 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 portion interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes or employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the payments or benefits Gross-Up Payment equal to the Excise Tax imposed upon the Payments. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that Gross-Up Payments which will not have been made by the Parent should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Parent exhausts its remedies pursuant to Section 24(k)(ii) and the Executive thereafter is required to make a payment of any Excise Tax, any such Underpayment shall be promptly paid by the Parent to or for the benefit of the Executive. (ii) The Executive shall notify the Parent in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Parent of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph10) constitutes an “excess parachute payment” within business days after the meaning of Section 280G (the aggregate Executive is informed in writing of such payments being hereinafter referred claim and shall apprise the Parent of the nature of such claim and the date on which such claim is requested to as the “Excess Parachute Payments”), the Company be paid. The Executive shall promptly not pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited such claim prior to the Excise Tax) expiration of the 30-day period following the date on which it gives such notice to the Parent (or such shorter period ending on the date that any payment of taxes with respect to such gross-up payment equals claim is due). If the Excise Tax Parent notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Parent any information reasonably requested by the Parent relating to such claim; (B) take such action in connection with contesting such claim as the Parent shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Excess Parachute PaymentsParent; (C) cooperate with the Parent in good faith in order effectively to contest such claim; and (D) permit the Parent to participate in any proceedings relating to such claim; provided, however, that to the extent Parent shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any gross-up Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment would be considered “deferred compensation” for purposes of Section 409A of costs and expenses. Without limitation on the Code, the manner and time of payment, and the foregoing provisions of this Section C.32(b), the Parent shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Parent shall determine. provided, however, that if the Parent directs the Executive to pay such claim and sue for a refund, the Parent shall advance the amou▇▇ of such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Parent's control of the contest shall be adjusted limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (iii) If, after the receipt by the Executive of an amount advanced by the Parent pursuant to Section 24(k)(ii), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the extent necessary (but only to the extent necessary) to comply Parent's complying with the requirements of Section 409A 24(k)(ii)) promptly pay to the Parent the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Parent pursuant to Section 24(k)(ii), a determination is made that the Executive shall not be entitled to any refund with respect to such payment so that claim and the payment Parent does not give rise notify the Executive in writing of its intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) expiration of the Code (the “Section 409A penalties”); 30 days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform be repaid and the amount of such advance shall offset, to the requirements of Section 409A of the Codeextent thereof, the amount of the grossGross-up payment shall Up Payment required to be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilitypaid.

Gross-Up Payment. Payments under The following provisions shall apply in the event that it is determined that acceleration of the vesting of the stock option awarded to the Executive on September 24, 1996 (the "Stock Option") upon a Change in Control would be subject to the excise tax imposed by Section C.1. and Section C.2. 4999 of this Exhibit the Internal Revenue Code of 1986, as amended (the "Code"): (a) In the event it shall be made determined that acceleration of the vesting of the Stock Option upon a Change in Control would be subject to the excise tax imposed by Section 4999 of the Code, determined without regard to whether the deductibility of such payments any other payment, benefit or distribution (or combination thereof) by the Company, any other payments affiliates of the Company, or benefits one or more trusts established by the Company or any of its affiliates for the benefit of its employees, to or for the benefit of Executivethe Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, or otherwise), the Executive shall be entitled to receive a payment from the Company (a "Gross-Up Payment") would be limited or precluded by Section 280G in an amount equal to the sum of the following amounts: (i) the amount of the excise tax attributable solely to the accelerated vesting of the Stock Option (referred to as the "Excise Tax") and the amount of any additional excise tax under section 4999 of the Code imposed with respect to additional payments, if any, made pursuant to this paragraph (“Section 280G”a); (ii) and without regard to whether such payments (any interest or any other payments or benefits) would subject penalties incurred by the Executive with respect to the federal excise tax levied Excise Tax and other payments, if any, made pursuant to this paragraph (a); and (iii) any taxes, including income taxes, incurred by the Executive on certain “excess parachute the Excise Tax and other payments” , if any, made pursuant to this paragraph (a). (b) Subject to the provisions of paragraph (c) below, all determinations required to be made under this Section 2, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm as may be designated by the Company (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the acceleration of the vesting of the Stock Option, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 2, shall be paid by the Company to the Executive within five (5) days after the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall so indicate to the Executive in writing. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment"), consistent with the “calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to paragraph (c) and the Executive thereafter is required to make a payment of any Excise Tax”). If any portion , the Accounting Firm shall determine the amount of the payments or benefits Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (i) give the Company any information requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, but not limited towithout limitation, payments accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order to effectively contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and benefits under this Agreement but determined without regard to this paragraphpay directly all costs and expenses (including additional interest and penalties) constitutes incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an “excess parachute payment” within the meaning of Section 280G after-tax basis, for any Excise Tax or income tax (the aggregate including interest and penalties with respect thereto) imposed as a result of such payments being hereinafter referred to as representation and payment of costs and expenses. Without limitation on the “Excess Parachute Payments”foregoing provisions of this paragraph (c), the Company shall promptly control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue ▇▇▇ a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue ▇▇▇ a refund, the Company shall advance the amount of such payment to the Executive, on an additional amount (interest-free basis, and shall indemnify and hold the “grossExecutive harmless, on an after-up payment”) that after reduction for all taxes tax basis, from any Excise Tax or income tax (including but not limited to the Excise Taxinterest or penalties with respect thereto) imposed with respect to such gross-up payment equals the Excise Tax advance or with respect to the Excess Parachute Paymentsany imputed income with respect to such advance; and provided, further, that if the Executive is required to extend the statute of limitations to enable the Company to contest such claim, the Executive may limit this extension solely to such contested amount. The Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to paragraph (c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply Company's complying with the requirements of Section 409A paragraph (c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to paragraph (c), a determination is made that the Executive shall not be entitled to any refund with respect to such payment so that claim and the payment Company does not give rise notify the Executive in writing of its intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(Bexpiration of thirty (30) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform be repaid and the amount of such advance shall offset, to the requirements of Section 409A of the Codeextent thereof, the amount of the grossGross-up payment shall Up Payment required to be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilitypaid.

Gross-Up Payment. Payments In the event Executive becomes entitled to benefits under Section C.1. 4.01 or Article 5 hereof, the Company shall pay to Executive an additional lump sum payment (the "Gross-Up Payment"), in cash, equal to the sum of the amounts, if any, described in paragraphs A and Section C.2. of this Exhibit B below: A. Executive shall be made entitled under this paragraph to the sum of (i) the present value of all of Executive's applicable Federal, state and local taxes arising due to payments or coverage provided under Sections 4.01(d) or 4.01(e), to the extent such payments or coverage are provided in respect of benefits or coverage which, if provided to Executive while employed by the Company, would not have been taxable to Executive, and (ii) an additional amount such that after payment by Executive of all of Executive's applicable Federal, state and local taxes on such additional amount, Executive will retain an amount sufficient to pay the total of Executive's applicable Federal, state and local taxes arising due to the payment required pursuant to clause (i) above. For purposes of clause (i) above, present value shall be determined using the appropriate "applicable federal rate" promulgated by the Treasury Department under Code Section 1274(d) for the month in which the Gross-Up Payment is made, assuming that all taxes will be paid on the due date therefor (without regard to whether extensions). B. If any portion of the deductibility of such payments (Severance Benefits or any other payments payment under this Agreement, or benefits under any other agreement with or plan of the Company, including but not limited to or for stock options and other long-term incentives (in the benefit of Executiveaggregate "Total Payments") would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (the “Excise Tax”). If such excise tax, together with any portion of the payments or benefits to or for the benefit of Executive (includingsuch interest and penalties, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being are hereinafter collectively referred to as the “Excess Parachute Payments”"Excise Tax"), the Company then Executive shall promptly pay be entitled under this paragraph to Executive an additional amount (the “gross-up payment”) such that after reduction for payment by Executive of all taxes (of Executive's applicable Federal, state and local taxes, including but not limited to the any Excise Tax) with respect , imposed upon such additional amount, Executive will retain an amount sufficient to such gross-up payment equals pay the Excise Tax with respect to imposed on the Excess Parachute Total Payments; provided, that to . The amounts payable under this Section 6.01 shall be paid by the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A Company as soon as practicable (but in no event more than 30 days) after the occurrence of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give events giving rise to the interest Executive's right to benefits under Section 4.01 or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityArticle 5.

Gross-Up Payment. Whether or not the Executive becomes entitled to the payment provided under subsection (d) hereof, if any of the Total Payments under Section C.1. (as hereinafter defined) will be subject to the tax (the "Excise Tax") imposed by section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Company shall pay to the Executive, no later than the fifth day following the Date of Termination (or such other date as is hereinafter described), an additional amount (the "Gross-Up Payment") such that the net amount retained by him, after deduction of any Excise Tax on the Total Payments and Section C.2. of this Exhibit any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be made without regard equal to the Total Payments. For purposes of determining whether any of the deductibility Total Payments will be subject to the Excise Tax and the amount of such payments Excise Tax, (or any other i) all payments or benefits received or to be received by the Executive in connection with a Change in Control or for the benefit termination of the Executive's employment (whether payable pursuant to the terms of this Agreement or of any other plan, arrangement or agreement with the Company, its successors, any person whose actions 8 result in a change in control or any person affiliated (or which, as a result of the completion of the transactions causing a Change in Control, will become affiliated) would be limited with the Company or precluded by Section 280G such person within the meaning of section 1504 of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to , excluding the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (includingGross-Up Payments, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute "Total Payments”")) shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel selected by the independent auditors of the Company (as of the date immediately prior to the Change in Control) and reasonably acceptable to the Executive, such 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, (ii) all "excess parachute payments" (within the meaning of section 280G(b)(1) of the Code) shall be treated as subject to the Excise Tax, unless in the opinion of such tax counsel such excess parachute payments 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" (within the meaning of section 280G(b)(3) of the Code), or are not otherwise subject to the Excise Tax, and (iii) the value of any noncash 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 Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income and employment taxes at the highest marginal rate of taxation in the state and locality of the residence of the Executive on the Date of Termination (or such other date as is hereinafter described), net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the Date of Termination (or such other date as is hereinafter described), the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax or a federal, state and local income and employment taxes deduction) plus interest on the amount of such repayment at 120% of the applicable federal rate (as defined in section 1274(d) of the Code). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the employment of the Executive, or at such other time as is hereinafter described (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 promptly pay to Executive make an additional amount (the “gross-up payment”) that after reduction for all taxes payment in respect of such excess (including but not limited to the Excise Tax) plus any interest payable with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such paymentsexcess is finally determined. If an Executive who remains in the employ of the Company becomes entitled to the payment provided for by this paragraph, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up such payment shall be made at no later than the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as later of (x) the Committee may designate prior fifth day following the date on which the Executive notifies the Company that he is subject to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax and (if anyy) determined by ten days prior to the accounting firm, date on which the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityis initially due.

Gross-Up Payment. Payments under Section C.1. and Section C.2. If a Change in Control shall have occurred during the Term, the following shall apply: (a) If any of the payments or benefits received or to be received by Employee in connection with a Change in Control or Employee's termination of employment (whether pursuant to the terms of this Exhibit shall be made without regard to whether the deductibility of such payments (Agreement or any other payments plan, arrangement or benefits to or for agreement with the benefit of ExecutiveCompany) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether all such payments (or any other payments or and benefits, excluding the Gross-Up Payment, referred to as the "Total Payments") would will be subject Executive to the federal excise tax levied on certain “excess parachute payments” (the "Excise Tax") imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code"), the Company shall pay, at the time or times specified in Section 2.6(d), to Employee additional amounts (the "Gross-Up Payment") such that the net amount retained by Employee, after deduction of any Excise Tax on the Total Payments and any Federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax”: (A) all of the Total Payments shall be treated as "parachute payments" (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") selected by those individuals who were member of the Company's Board of Directors immediately prior to the effective date of the Change in Control and reasonably acceptable to the Employee, such payments or benefits (in whole or in part) should not be treated by the courts as constituting parachute payments, including by reason of Section 280G(b)(4)(A) of the Code; (B) all "excess parachute payments" within the meaning of Section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) should be treated by the courts as representing reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code), or are otherwise not subject to the Excise Tax; and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. All fees and expenses of the Tax Counsel shall be borne solely by the Company. (c) For purposes of determining the amount of the Gross-Up Payment, Employee shall be deemed to pay Federal income tax at the highest stated marginal income tax rates for the calendar years in which the Gross-Up Payments are to be made and state and local income taxes at the highest stated marginal rates of taxation in the state and locality of Employee's residence in the calendar year in which the Gross-Up Payments are to be made, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes, taking into account the reduction in itemized deductions under Section 68 of the Code, but not taking into account alternative minimum taxes. (d) Installments of the Gross-Up Payments shall be paid (including by the Company making a withholding payment to the tax authorities) as the Total Payments are paid to the Employee, unless the Excise Tax is due at an earlier date, in which case, the Gross-Up Payment shall be made at such earlier date, or unless it is initially determined by the Company or the Tax Counsel that the Total Payments are not subject to the Excise Tax but after payment of the Total Payments, it is finally determined following the proceedings described in Section 2.6(e) and (f) that the Total Payments are subject to the Excise Tax, in which case the Gross-Up Payment shall be made upon the imposition upon Employee of the Excise Tax following the proceedings described in Section 2.6(e) and (f). (e) Employee shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after Employee is informed in writing of such claim and shall describe the nature of such claim and the date on which such claim is requested to be paid. Employee shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which Employee gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Employee in writing prior to the expiration of such period that it desires to contest such claim, Employee shall: (i) give the Company any portion of information reasonably requested by the payments or benefits Company relating to or for such claim; (ii) take such action in connection with contesting such claim as the benefit of Executive Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company and reasonably satisfactory to Employee; (iii) cooperate with the Company in good faith in order to effectively contest such claim; and (iv) permit the Company to control any proceedings relating to such claim as provided below; provided, however, that the Company shall bear and pay directly all costs and expenses (including, but not limited to, payments additional interest and benefits under this Agreement but determined without regard to this paragraphpenalties and related legal, consulting or other similar fees) constitutes incurred in connection with such contest and shall indemnify and hold Employee harmless, on an “excess parachute payment” within the meaning of Section 280G after-tax basis, for any Excise Tax or other tax (the aggregate including interest and penalties with respect thereto) imposed as a result of such payments being hereinafter referred representation and payment of costs and expenses. (f) The Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Employee to pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner, and Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the “Excess Parachute Payments”)Company shall determine; provided, however, that if the Company directs Employee to pay such claim and ▇▇▇ for a refund, the Company shall promptly pay advance the amount of such payment to Executive Employee on an additional amount (the “grossinterest-up payment”) that after reduction for all taxes free basis, and shall indemnify and hold Employee harmless, on an after-tax basis, from any Excise Tax or other tax (including but not limited to the Excise Taxinterest or penalties with respect thereto) imposed with respect to such gross-up payment equals the Excise Tax advance or with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A imputed income with respect to such payment so advance; and provided, further, that if Employee is required to extend the payment does not give rise statute of limitations to enable the Company to contest such claim, Employee may limit this extension solely to such claim. The Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Employee shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. In addition, no position may be taken nor any final resolution be agreed to by the Company without Employee's consent if such position or resolution could reasonably be expected to adversely affect Employee (including any other tax position of Employee unrelated to the interest or additional tax amounts described at Section 409A(a)(1)(Bmatters covered hereby). (g) or Section 409A(b)(4) In the event that Employee receives a refund of the Code (the “Section 409A penalties”); and further providedExcise Tax previously paid, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform Employee shall repay to the requirements Company, within five (5) business days following the receipt of Section 409A such refund of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if soExcise Tax previously paid, the amount of such payments, the amount of refund plus any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense interest received by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if Employee from the Internal Revenue Service shall assert on the refund, and an amount equal to the reduction in Employee's Federal, state and local income tax if the repayment is deductible, using the assumptions set forth in Section 2.6(c). If, after the receipt by Employee of an amount advanced by the Company in connection with an Excise Tax liability claim, a determination is made that is higher than the Excise Tax (if any) determined by the accounting firm, Employee shall not be entitled to any refund with respect to such claim and the Company does not notify Employee in writing of its intent to contest the denial of such refund prior to the expiration of thirty (30) days after such determination, such advance shall promptly augment the gross-up payment be forgiven and shall not be required to address such higher Excise Tax liabilitybe repaid.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit (i) In the event it shall be made without regard to whether finally determined, in a proceeding that is non-appealable, that any payment, award, benefit or distribution by the deductibility of such payments Parent (or any other payments or benefits of its affiliated entities) to or for the benefit of Executive) would be limited the Executive (whether pursuant to the terms of this Agreement or precluded by Section 280G of the Code (“Section 280G”) and otherwise, but determined without regard to whether such any additional payments required under this Section 24(k) (or any other payments or benefitsa “Payment”) would is subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Code or any corresponding provisions of state or local tax laws, 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”). If , 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 portion interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes or employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the payments or benefits Gross-Up Payment equal to the Excise Tax imposed upon the Payments. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that Gross-Up Payments which will not have been made by the Parent should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Parent exhausts its remedies pursuant to Section 24(k)(ii) and the Executive thereafter is required to make a payment of any Excise Tax, any such Underpayment shall be promptly paid by the Parent to or for the benefit of the Executive. (ii) The Executive shall notify the Parent in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Parent of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph10) constitutes an “excess parachute payment” within business days after the meaning of Section 280G (the aggregate Executive is informed in writing of such payments being hereinafter referred claim and shall apprise the Parent of the nature of such claim and the date on which such claim is requested to as the “Excess Parachute Payments”), the Company be paid. The Executive shall promptly not pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited such claim prior to the Excise Tax) expiration of the 30-day period following the date on which it gives such notice to the Parent (or such shorter period ending on the date that any payment of taxes with respect to such gross-up payment equals claim is due). If the Excise Tax Parent notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Parent any information reasonably requested by the Parent relating to such claim; (B) take such action in connection with contesting such claim as the Parent shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Excess Parachute PaymentsParent; (C) cooperate with the Parent in good faith in order effectively to contest such claim; and (D) permit the Parent to participate in any proceedings relating to such claim; provided, however, that to the extent Parent shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any gross-up Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment would be considered “deferred compensation” for purposes of Section 409A of costs and expenses. Without limitation on the Code, the manner and time of payment, and the foregoing provisions of this Section C.3paragraph, the Parent shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Parent shall determine. provided, however, that if the Parent directs the Executive to pay such claim and ▇▇▇ for a refund, the Parent shall advance the amount of such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Parent’s control of the contest shall be adjusted limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (iii) If, after the receipt by the Executive of an amount advanced by the Parent pursuant to Section 24(k)(ii), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the extent necessary (but only to the extent necessary) to comply Parent’s complying with the requirements of Section 409A 24(k)(ii)) promptly pay to the Parent the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Parent pursuant to Section 24(k)(ii), a determination is made that the Executive shall not be entitled to any refund with respect to such payment so that claim and the payment Parent does not give rise notify the Executive in writing of its intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) expiration of the Code (the “Section 409A penalties”); 30 days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform be repaid and the amount of such advance shall offset, to the requirements of Section 409A of the Codeextent thereof, the amount of the grossGross-up payment shall Up Payment required to be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilitypaid.

Gross-Up Payment. Payments under (a) Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined that any payment or consideration received by Executive from a Group Company (or any Person whose actions result in a change in ownership or effective control or in the ownership of a substantial portion of assets of the Group Companies covered by Section C.1. and 280G(b)(2) of the Internal Revenue Code of 1986 of the United States, as amended (the “Code”), or any Person affiliated with any Group Company or any such Person) in connection with a Change of Control or any other change in ownership or control or substantial portion of assets for purposes of Section C.2. 280G (in each case whether paid or payable pursuant to the terms of this Exhibit shall be made Agreement or otherwise, but determined without regard to whether the deductibility of any additional payments required under this Section 5(a)) (any such payments payment or consideration described in such clauses (i) or any other payments or benefits to or for the benefit of Executive(ii), a “Payment”) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Code Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties are hereinafter collectively referred to as the “Excise Tax”). If any portion , the Company shall pay to Executive at the time specified in Section 5(e) below an additional amount (a “Gross-Up Payment”) such that the net amount of the Gross-Up Payment retained by Executive, after deduction of all federal, state and local income tax (and any interest and penalties imposed with respect thereto), employment tax and Excise Tax on the Gross-Up Payment, shall be equal to the amount of the Excise Tax imposed on such Payment. (b) For purposes of the foregoing Section 5(a), the proper amounts, if any, of the Excise Tax and the Gross-Up Payment shall be determined in the first instance by the Company. Such determination by the Company shall be promptly communicated in writing by the Company to Executive. Within 10 days of being provided with written notice of any such determination, Executive may provide written notice to the Compensation Committee of the Board (or, if there is no such Compensation Committee, the Board) of any disagreement, in which event the amounts, if any, of the Excise Tax and the Gross-Up Payment shall be determined by an independent accounting firm mutually selected by the Company and Executive in which event the Company shall bear the costs of retaining such independent accounting firm. The determination of the Company (or in the event of disagreement, the accounting firm selected) shall be final and nonreviewable. (c) For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax under Section 5(a), any payments or benefits received or to or for the benefit be received by Executive in connection with a termination of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an employment shall be treated as “excess parachute paymentpayments” within the meaning of Section 280G (280G(b)(2) of the aggregate Code, and all “excess parachute payments” within the meaning of such payments being hereinafter referred to Section 280G(b)(1) of the Code shall be treated as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited subject to the Excise TaxTax unless the Company or the accounting firm selected above, as applicable, determines based on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, with substantial authority (within the meaning of Section 6662 of the Code), such other payments or benefits (in whole or in part) with respect 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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code. (d) For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rate of tax in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of tax in the state and locality of Executive’s residence on the date of termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such gross-up payment equals the Excise Tax with respect to the Excess Parachute Paymentsstate and local taxes; provided, however, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessaryextent) required to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(BRegulation §409A-3(i)(l)(v) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of under the Code, the amount of the grossGross-up payment Up Payment shall be determined without regard equal to any grossall of the Federal, state and local taxes imposed on Executive as a result of the Excise Tax and Gross-up Up Payment. (e) The Gross-Up Payments provided for in Section 5(a) shall be made in a cash, lump-sum payment to the Section 409A penalties. The determination as to whether Executive (or appropriate taxing authority on Executive’s payments and benefits include Excess Parachute Payments andbehalf) when due but in no event later than the end of the year following the year in which Executive remits the Excise Tax, if sonet of any required tax withholdings, upon the later of (i) the fifth business day following the effective date of termination, or (ii) the calculation of the amount of such paymentsthe Gross-Up Payment under Section 5(b). Any Gross-Up Payment required hereunder that is not made in a timely manner shall bear interest at a rate equal to the prime rate quoted on the date the payment is first overdue by Citibank N.A., New York, New York plus two percent until paid. (f) As a result of the amount uncertainty in the application of any Excise Tax owed with respect theretoSection 280G of the Code at the time of a determination hereunder, and the amount of any gross-up payment shall it is possible that payments will be made at by the Company’s expense Company which should not have been made under Section 4(f) (“Overpayment”) or that additional payments which are not made by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior Company pursuant to a Change of Control Section 5(a) should have been made (the “accounting firmUnderpayment”). Notwithstanding In the foregoing, if event that there is a final determination by the Internal Revenue Service Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made, any such Overpayment shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined be promptly reimbursed by the accounting firmExecutive to the Company. In the event there is a final determination by the Internal Revenue Service, a final determination by a court of competent jurisdiction or a change in the provisions of the Code or regulations pursuant to which an Underpayment arises under this Agreement, any such Underpayment shall be promptly paid by the Company to the Executive, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. (g) Amounts which are vested benefits or which Executive is otherwise entitled to receive under any plan, policy, practice or program of or in any contract or agreement with the Company or any other Group Company at or subsequent to the date of termination of Executive’s employment for any reason shall promptly augment the gross-up payment to address be payable in accordance with such higher Excise Tax liabilityplan, policy, practice or program or contract or agreement except as explicitly modified by this Agreement.

Gross-Up Payment. Payments under Section C.1(a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any Payment would be subject to the Excise Tax, then Executive shall be entitled to receive an additional payment (the "Gross-Up Payment") ---------------- in an amount such that, after payment by Executive of all Taxes (and any interest or penalties imposed with respect to such Taxes), including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. and Section C.2. Notwithstanding the foregoing provisions of this Exhibit Section 6.4(a), if it shall be determined that Executive is entitled to the Gross-Up Payment, but that the Parachute Value of all Payments does not exceed one hundred and ten percent (110%) of the Safe Harbor Amount, then except as provided below, no Gross-Up Payment shall be made without regard to Executive and the amounts payable under this Agreement, other than amounts or benefits provided under Article V of this Agreement or pursuant to any other option or equity grants to Executive (the "Subject Payments"), shall be reduced (but not below zero) so that the ---------------- Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 7.3(a)(ii), unless an alternative method of reduction is elected by Executive, and in any event shall be made in such a manner as to maximize the Value of all Payments actually made to Executive. For purposes of reducing the Payments to the Safe Harbor Amount, only the Subject Payments shall be reduced. If the reduction of the Subject Payments would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, no amounts payable under the Agreement shall be reduced pursuant to this Section 6.4(a), and the Gross-Up Payment shall be made to Executive. The Debtor's or the Reorganized Entity's obligation to make Gross-Up Payments under this Section 6.4 shall not be conditioned upon Executive's Termination of Employment. (b) Subject to the provisions of Section 6.4(c), all determinations required to be made under this Section 6.4, including whether and when a Gross-Up Payment is required, the deductibility amount of such payments Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young, LLP, or such other nationally recognized certified public accounting firm as may be designated by Executive (the "Accounting Firm"). The Accounting Firm --------------- shall provide detailed supporting calculations both to the Debtor or the Reorganized Entity and Executive within fifteen (15) business days of the receipt of notice from Executive that there has been a Payment or such earlier time as is requested by the Debtor or the Reorganized Entity. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, Executive may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Debtor or the Reorganized Entity. Any Gross-Up Payment, as determined pursuant to this Section 6.4, shall be paid by the Debtor or the Reorganized Entity to Executive within five (5) business days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Debtor or the Reorganized Entity and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Debtor or the Reorganized Entity should have been made (the "Underpayment"), consistent with the calculations required to be made ------------ hereunder. In the event the Debtor or the Reorganized Entity exhausts its or their remedies pursuant to Section 6.4(c) and Executive thereafter is required to make a payment of any other payments Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Debtor or benefits the Reorganized Entity to or for the benefit of Executive. (c) The Executive shall notify the Debtor or the Reorganized Entity in writing of any claim by the Internal Revenue Service that, if successful, would be limited require the payment by the Debtor or precluded by Section 280G the Reorganized Entity of the Code Gross-Up Payment. Such notification shall be given as soon as practicable, but no later than ten (“Section 280G”10) business days after Executive is informed in writing of such claim. The Executive shall apprise the Debtor or the Reorganized Entity of the nature of such claim and without regard the date on which such claim is requested to whether be paid. The Executive shall not pay such payments claim prior to the expiration of the thirty (30) calendar day period following the date on which Executive gives such notice to the Debtor or the Reorganized Entity (or such shorter period ending on the date that any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 payment of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) Taxes with respect to such grossclaim is due). If the Debtor or the Reorganized Entity notifies Executive in writing prior to the expiration of such period that the Debtor or the Reorganized Entity desires to contest such claim, Executive shall: (i) give the Debtor or the Reorganized Entity any information reasonably requested by the Debtor or the Reorganized Entity relating to such claim, (ii) take such action in connection with contesting such claim as the Debtor or the Reorganized Entity shall reasonably request in writing from time to time, including accepting legal representation with respect to such claim by an attorney reasonably selected by the Debtor or the Reorganized Entity, (iii) cooperate with the Debtor or the Reorganized Entity in good faith in order effectively to contest such claim, and (iv) permit the Debtor or the Reorganized Entity to participate in any proceedings relating to such claim; provided, however, that the Debtor or the Reorganized Entity shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, and shall indemnify and hold Executive harmless, on an after-up payment equals the tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 6.4(c), the Debtor or the Reorganized Entity shall control all proceedings taken in connection with such contest, and, at its or their sole discretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its or their sole discretion, either direct Executive to pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Debtor or the Reorganized Entity shall determine; provided, however, that, if the Debtor or the Reorganized Entity direct or directs Executive to pay such claim and ▇▇▇ for a refund, the Debtor or the Reorganized Entity shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties) imposed with respect to such advance or with respect to any imputed income in connection with such advance; and provided, further, that any extension of the statute of limitations relating to payment of Taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Debtor's or the Reorganized Entity's control of the contest shall be limited to issues with respect to which the Gross-Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of a Gross-Up Payment or an amount advanced by the Debtor or the Reorganized Entity pursuant to Section 6.4(c), Executive becomes entitled to receive any refund with respect to the Excess Parachute Payments; providedExcise Tax to which such Gross-Up Payment relates or with respect to such claim, that Executive shall (subject to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of Debtor's or the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply Reorganized Entity's complying with the requirements of Section 409A 6.4(c), if applicable) promptly pay to the Debtor or the Reorganized Entity the amount of such refund (together with any interest paid or credited thereon after Taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Debtor or the Reorganized Entity pursuant to Section 6.4(c), a determination is made that Executive shall not be entitled to any refund with respect to such payment so that claim and the payment Debtor or the Reorganized Entity do or does not give rise notify Executive in writing of its or their intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(Bexpiration of thirty (30) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); calendar days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments repaid and benefits include Excess Parachute Payments and, if so, the amount of such paymentsadvance shall be offset, to the extent thereof, against the amount of Gross-Up Payment required to be paid. (e) Notwithstanding any Excise Tax owed with respect theretoother provision of this Section 6.4, the Debtor or the Reorganized Entity may, in its or their sole discretion, withhold and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior pay over to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than or any other applicable taxing authority, for the Excise Tax (if any) determined by the accounting firmbenefit of Executive, the Company shall promptly augment the grossall or any portion of any Gross-up payment Up Payment, and Executive hereby consents to address such higher Excise Tax liabilitywithholding.

Gross-Up Payment. Payments In the event Executive becomes entitled to benefits under Section C.1. 4.01 or Article 5 hereof, the Company shall pay to Executive an additional lump sum payment (the "Gross-Up Payment"), in cash, equal to the sum of the amounts, if any, described in paragraphs (a) and Section C.2. of this Exhibit (b) below: (a) Executive shall be made entitled under this paragraph to the sum of (i) the present value of all of Executive's applicable federal, state and local taxes arising due to payments or coverage provided under Section 4.01(d) or 4.01(e), to the extent such payments or coverage are provided in respect of benefits or coverage which, if provided to Executive while employed by the Company, would not have been taxable to Executive, and (ii) an additional amount such that after payment by Executive of all of Executive's applicable federal, state and local taxes on such additional amount, Executive will retain an amount sufficient to pay the total of Executive's applicable federal, state and local taxes arising due to the payment required pursuant to clause (i) above. For purposes of clause (i) above, present value shall be determined using the appropriate "applicable federal rate" promulgated by the Treasury Department under Code Section 1274(d) for the month in which the Gross-Up Payment is made, assuming that all taxes will be paid on the due date therefore (without regard to whether extensions). (b) If any portion of the deductibility of such payments (Severance Benefits or any other payments payment under this Agreement, or benefits under any other agreement with or plan of the Company, including but not limited to or for stock options and other long-term incentives (in the benefit of Executiveaggregate "Total Payments") would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (the “Excise Tax”). If such excise tax, together with any portion of the payments or benefits to or for the benefit of Executive (includingsuch interest and penalties, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being are hereinafter collectively referred to as the “Excess Parachute Payments”"Excise Tax"), the Company then Executive shall promptly pay be entitled under this paragraph to Executive an additional amount (the “gross-up payment”) such that after reduction for payment by Executive of all taxes (of Executive's applicable federal, state and local taxes, including but not limited to the any Excise Tax) with respect , imposed upon such additional amount, Executive will retain an amount sufficient to such gross-up payment equals pay the Excise Tax with respect to imposed on the Excess Parachute Total Payments; provided, that to . The amounts payable under this Section 6.01 shall be paid by the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A Company as soon as practicable (but in no event more than 30 days) after the occurrence of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give events giving rise to the interest Executive's right to benefits under Section 4.01 or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityArticle 5.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of (i) Anything in this Exhibit Agreement to the contrary notwithstanding, in the event it shall be made without regard to whether the deductibility determined that any payment, grant, acceleration or distribution by or on behalf of such payments (or any other payments or benefits Parent to or for the benefit of ExecutiveEmployee as a result of any change in control (within the meaning of Section 280 G of the internal revenue code) or as otherwise payable under Sections 3(h), 6 or 8(a) (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 8(g) (a “Payment”)) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by 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”). If , then Employee shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that, after payment by Employee of all taxes upon the Gross-Up Payment (such taxes including, without limitation, any portion income taxes and Excise Tax imposed upon the Gross-Up Payment, and any interest or penalties imposed with respect to such taxes), Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment. (ii) Subject to the provisions of Section 8(g)(iii), all determinations required to be made under this Section 8, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm or law firm selected by Employee and reasonably acceptable to Parent (the “Tax Firm”); provided, however, that the Tax Firm shall not determine that no Excise Tax is payable by Employee unless it delivers to Employee a written opinion (the “Accounting Opinion”) that failure to pay the Excise Tax and to report the Excise Tax and the payments potentially subject thereto on or benefits with Employee’s applicable federal income tax return will not result in the imposition of an accuracy-related or other penalty on Employee. All fees and expenses of the Tax Firm shall be borne solely by Parent. Within 15 business days of the receipt of notice from Employee that there has been a Payment, the Tax Firm shall make all determinations required under this Section 8, shall provide to Parent and Employee a written report setting forth such determinations, together with detailed supporting calculations, and, if the Tax Firm determines that no Excise Tax is payable, shall deliver the Accounting Opinion to Employee. Any Gross-Up Payment, as determined pursuant to this Section 8, shall be paid by Parent to Employee within fifteen days of the receipt of the Tax Firm’s determination. Subject to the remainder of this Section, any determination by the Tax Firm shall be binding upon Parent and Employee; provided, however, that Employee shall only be bound to the extent that the determinations of the Tax Firm hereunder, including the determinations made in the Accounting Opinion, are reasonable and reasonably supported by applicable law. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Tax Firm hereunder, it is possible that Gross-Up Payments which will not have been made by Parent should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that it is ultimately determined in accordance with the procedures set forth in Section 8(g)(iii) that Employee is required to make a payment of any Excise Tax, the Tax Firm shall reasonably determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Parent to or for the benefit of Executive Employee. In determining the reasonableness of Tax Firm’s determinations hereunder, and the effect thereof, Parent and Employee shall be provided a reasonable opportunity to review such determinations with Tax Firm and their respective tax counsel, if separate from the Tax Firm. Tax Firm’s determinations hereunder, and the Accounting Opinion, shall not be deemed reasonable until Employee’s reasonable objections and comments thereto have been satisfactorily accommodated by Tax Firm. (includingiii) Employee shall notify Parent in writing of any claims by the Internal Revenue Service that, if successful, would require the payment by Parent of the Gross-Up Payment. Such notification shall be given as soon as practicable, but no later than 30 calendar days after Employee actually receives notice in writing of such claim, and shall apprise Parent of the nature of such claim and the date on which such claim is requested to be paid; provided, however, that the failure of Employee to notify Parent of such claim (or to provide any required information with respect thereto) shall not limited to, payments and benefits affect any rights granted to Employee under this Agreement but determined without regard Section except to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (extent that Parent is materially prejudiced in the aggregate defense of such payments being hereinafter referred to claim as the “Excess Parachute Payments”), the Company a direct result of such failure. Employee shall promptly not pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited such claim prior to the Excise Taxexpiration of the thirty (30) day period following the date on which he gives such notice to Parent (or such shorter period ending on the date that any payment of taxes with respect to such gross-up payment equals claim is due). If Parent notifies Employee in writing prior to the Excise Tax expiration of such period that it desires to contest such claim, Employee shall do all of the following: (A) give Parent any information reasonably requested by Parent relating to such claim; (B) take such action in connection with contesting such claim as Parent shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by Parent and reasonably acceptable to Employee; (C) cooperate with Parent in good faith in order effectively to contest such claim; (D) if Parent elects not to assume and control the Excess Parachute Paymentsdefense of such claim, permit Parent to participate in any proceedings relating to such claim; provided, however, that to Parent shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Employee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limiting the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the foregoing provisions of this Section C.38, Parent shall have the right, at its sole option, to assume the defense of and control all proceedings in connection with such contest, in which case it may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may either direct Employee to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Parent shall determine; provided, however, that if Parent directs Employee to pay such claim and s▇▇ for a refund, Parent shall advance the amount of such payment to Employee, on an interest-free basis and shall indemnify and hold Employee harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of Employee with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Parent’s right to assume the defense of and control the contest shall be adjusted limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Employee shall be entitled to settle or contest, as the extent necessary case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (but only iv) If, after the receipt by Employee of an amount advanced by Parent pursuant to the extent necessary) this Section 8(g), Employee becomes entitled to comply receive any refund with respect to such claim, Employee shall (subject to Parent’s complying with the requirements of Section 409A 8(g)(iii)) promptly pay to Parent the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Employee of an amount advanced by Parent pursuant to Section 8(g)(iii), a determination is made that Employee is not entitled to a refund with respect to such payment so that the payment claim and Parent does not give rise notify Employee in writing of its intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) expiration of 30 days after such determination, then such advance shall, to the Code (the “Section 409A penalties”); extent of such denial, be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform be repaid and the amount of forgiven advance shall offset, to the requirements of Section 409A of the Codeextent thereof, the amount of the grossGross-up payment shall Up Payment required to be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilitypaid.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit In the event that it shall be made without regard to whether determined at any time that the deductibility of such payments payment provided under paragraph 8(d) above (the "Contract Payment") or any other payments payment or benefits to or for distribution by the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive Company to the federal excise Executive (including deemed payments arising from accelerated vesting of stock options) is subject to the tax levied on certain “excess parachute payments” under Section (the "Excise Tax") imposed by section 4999 of the Internal Revenue Code (the “Excise Tax”). If any portion of 1986, as amended, Section 11.5 of the payments Company's 1997 Employee Stock Option Plan or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess similar "parachute payment” within " limitations under any other agreement between the meaning of Section 280G (Company and the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”)Executive that are in effect shall not apply, and the Company shall promptly pay to the Executive an additional amount (the “gross-up payment”"Gross- Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Contract Payment and such other Total Payments (as defined below) and any federal and state and local income tax and Excise Tax upon the payment provided for by this paragraph, shall be equal to the Contract Payment and such other Total Payments. For purposes of determining whether any of the payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or benefits received or to be received by the Executive in connection with a change in control of the Company or the Executive's termination of employment, whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, its successors, any person whose actions result in a change in control of the Company or any corporation affiliated (or which, as a result of the completion of a transaction causing a change in control, will become affiliated) with the Company within the meaning of Section 1504 of the Code (together with the Contract Payment, the "Total Payments") shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and all taxes (including but not limited "excess parachute payments" within the meaning of section 280G(b)(1) 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 the Total Payments (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(b)(4) of the Code either in their entirety or in excess of the base amount within the meaning of section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(1) (after applying clause (i), above), and (iii) the value of any 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(b)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date of determination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of payment of the Gross-Up Payment, the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax and/or a federal state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(d) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the payment of the Gross-Up Payment (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 payable with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that excess is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityfinally determined.

Gross-Up Payment. Payments (a) In the event that any payment received by the Executive or paid by the Company on behalf of the Executive under this Agreement or under any other plan, arrangement or agreement with the Company or any person whose actions result in a Change in Control (collectively, the "Total Payments") will be subject to the excise tax (the "Excise Tax") imposed by Section C.1. and Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments 4999 (or any other payments or benefits to or for the benefit of Executivesuccessor provision) would be limited or precluded by Section 280G of the Internal Revenue Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code 1986, as amended (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”"Code"), the Company shall promptly pay to the Executive an additional amount (the “gross"Gross-up payment”Up Payment") that after reduction for as computed under Section 7(f) hereof, (b) 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 taxes (including but not limited "excess parachute payments" within the meaning of Section 280G(b)(l) of the Code, shall be treated as subject to the Excise Tax, unless in the written opinion of tax counsel selected by mutual agreement of Executive and Company 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, as defined in Section 280G(b)(3)(A) of the Code (the "Base Amount") allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (ii) the value of any non-cash benefits of 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 Code. (c) For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income and other taxes at the highest applicable marginal rate of taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income and other taxes at the highest applicable marginal rate of taxation in the state and locality of the Executive's 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 any other taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined or upon the Executive's receipt of a refund from the taxing authorities of the amount attributable to the reduction in the excise tax, whichever is later, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and other taxes imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such gross-up payment equals excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Excess Parachute Total Payments; provided, that . (d) The Gross-Up Payment payable under this Agreement shall be payable on the earlier of (i) the date the Company is required to withhold the extent any gross-up payment would be considered “deferred compensation” for purposes of Excise Tax pursuant to Section 409A 4999 of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted or (ii) five (5) business days prior to the extent necessary date the Executive is required to pay the Excise Tax. (but only to e) Executive shall notify the extent necessary) to comply with Company in writing of any audit or review by the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) Internal Revenue Service of the Code Executive's federal income tax return relating to any payment under this Agreement within ten (10) days of the “Section 409A penalties”); and further providedExecutive's receipt of notice of such audit or review. In addition, the Executive shall notify the Company in writing of the final resolution of such audit or review within ten (10) days of such resolution. (f) The parties hereto intend that if, notwithstanding the immediately preceding proviso, the gross-up payment cancontemplated by this Section 7 shall not be made apply to conform to amounts received by the requirements of Section 409A of Executive under the CodeLawson Products, Inc. Long-Ter▇ ▇▇▇▇tal Accumulation Plan (the amount of "CAP"). The parties further intend that the grossGross-up payment Up Payment shall be determined without regard computed such that the net amount retained by the Executive with respect to any grossall amounts other than the CAP (the "Non-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments andCAP Compensation"), if so, the amount of such payments, the amount after deduction of any Excise Tax owed with respect theretoon the Non-CAP Compensation and of any federal, state and local income, excise or other taxes upon the Gross-Up Payment shall be equal to the Non-CAP Compensation. For purposes of such computation: (i) the Total Payments shall be taken into account in determining whether Excise Tax is due, and (ii) the amount of any gross-up payment Base Amount shall be made at deemed to be allocated first to amounts received under the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityCAP.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company Purchaser shall promptly pay to Executive Sellers (in accordance with their respective Pro-Rata Shares), by wire transfer of immediately available funds, as an additional amount increase to the Purchase Price, the sum of (a) the aggregate increase in Taxes, incurred by Sellers, resulting from an election made under Section 338(h)(10) of the Code and any similar provision of state or local law (each, a “338(h)(10) Election”) such that the Sellers will receive the same after-Tax proceeds as if Sellers had sold stock and no 338(h)(10) Election had occurred, plus (b) a “gross-up payment”) that after reduction for all taxes (including but not limited ” equal to the Excise TaxTaxes that Sellers must pay on the Taxes described in clause (a) with respect to such and any “gross-up payment equals payment” pursuant to this clause (b) (the Excise Tax with respect sum of such amounts in clauses (a) and (b) being referred to collectively as the Excess Parachute Payments; provided, that to “Gross-Up Payment”). The Parties agree the extent any gross-up payment would be considered “deferred compensation” following principles shall apply for purposes of Section 409A calculating the Gross-Up Payment: (i) the calculation of the Code, the manner and time of payment, and the provisions of this Section C.3, Gross-Up Payment shall be adjusted to the extent necessary (but only to the extent necessary) to comply made in accordance with the requirements of Section 409A with respect to such payment so that Tax Allocation; and (ii) the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code methodology set forth on Schedule 2.7 (the “Gross-Up Methodology”) shall be used to calculate the Gross-Up Payment. The obligation to compensate Sellers for increased Taxes as set forth in this Section 409A penalties”2.7 will be ongoing in the event of any actual adjustment upon amended return, audit or otherwise, and any additional increase shall be paid promptly by Purchaser by wire transfer of immediately available funds to an account designated in writing by the Seller Representative for the benefit of the Sellers (in accordance with their respective Pro-Rata Shares); , as the designees of Sellers and further provided, that if, notwithstanding any decrease shall be paid promptly by the Sellers by wire transfer of immediately preceding proviso, the gross-up payment cannot be made to conform available funds to the requirements of Section 409A of the Code, account specified in writing by Purchaser. Any dispute regarding the amount of the grossGross-up payment Up Payment shall be determined without regard resolved in accordance with the dispute resolution provisions described in Section 2.5(c), substituting for these purposes any reference in Section 2.5(c) to any gross“Final Net Working Capital” or similar and “Purchaser Closing Statement” with “Final Gross-up for Up Payment” and “calculation of the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments andFinal Gross-Up Payment”, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityrespectively.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of (a) In the event that the Executive shall become entitled to payments, distributions and/or benefits provided by this Exhibit shall be made without regard to whether the deductibility of such payments (Agreement or any other payments amounts in the “nature of compensation,” whether pursuant to the terms of this Agreement, any other plan, arrangement or benefits to agreement with the Company, any person whose actions result in a change in ownership or for the benefit of Executive) would be limited or precluded by effective control under Section 280G of the Code (“Section 280G”) and without regard to whether such payments (Code, or any other payments person affiliated with the Company or benefits) would such person, or otherwise (collectively, the “Company Payments”), and such Company Payments will be subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority) or any interest or penalties that are incurred by Executive with respect to any such taxes (collectively, the “Excise Tax”). If , the Executive shall be entitled to an additional payment (the “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any portion interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount equal to the Excise Tax imposed on the Company Payments. (b) Subject to the provisions of paragraph (c) below, all determinations required to be made under this Section, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the Company’s independent auditors or, at the Executive’s option, any other nationally or regionally recognized firm of independent accountants selected by the Executive and approved by the Company, which approval shall not be unreasonably withheld, (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Executive within 20 business days after receipt of notice from the Company or Executive that there has been a Company Payment; provided that for purposes of determining the amount of any Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest effective rates applicable to individuals in the state or locality of Executive’s residence or place of employment (whichever is higher) in the calendar year in which such Gross-Up Payment is to be made, net of the payments maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account limitations applicable to individuals subject to federal income tax at the highest marginal rates. All fees and expenses of the Accounting Firm shall be paid solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section, shall be paid by the Company to Executive (or benefits to the appropriate taxing authority on Executive’s behalf) not later than the due date for the payment of any Excise Tax. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to paragraph (c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for Executive’s benefit. (c) Executive agrees to notify the benefit Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive agrees to: (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, but not limited towithout limitation, payments accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order to effectively contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; PROVIDED, HOWEVER, that the Company agrees to bear and benefits under this Agreement but determined without regard to this paragraphpay directly all costs and expenses (including additional interest and penalties) constitutes incurred in connection with such contest and shall indemnify and hold Executive harmless, on an “excess parachute payment” within the meaning of Section 280G after-tax basis, for any Excise Tax or income tax (the aggregate including interest and penalties with respect thereto) imposed as a result of such payments being hereinafter referred to as representation and payment of costs and expenses. Without limitation on the “Excess Parachute Payments”foregoing provisions of this subsection (c), the Company shall promptly control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, further, however, that if the Company directs Executive to pay such claim and ▇▇▇ for a refund, the Company shall advance the amount of such payment to Executive, on an additional amount (the “grossinterest-up payment”) that after reduction for all taxes free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including but not limited to the Excise Taxinterest or penalties with respect thereto) imposed with respect to such gross-up payment equals the Excise Tax advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the Excess Parachute Payments; providedstatute of limitations relating to payment of taxes for Executive’s taxable year with respect to which such contested amount is claimed to be due is limited solely to such contested amount, that provided that, to the extent any grossthe foregoing provision shall be deemed to create a loan of a personal nature in violation of Section 402 of the ▇▇▇▇▇▇▇▇-up payment ▇▇▇▇▇ Act of 2002, the provision for repayment shall be null and void. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be considered “deferred compensation” for purposes payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to this Section, Executive receives any refund with respect to such claim, Executive agrees to promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to subsection (c), a determination is made that Executive is not entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. To the extent the foregoing provision shall be deemed to create a loan of a personal nature in violation of Section 409A 402 of the Code▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, the manner provision for repayment shall be null and time void. (e) For the avoidance of paymentdoubt, and the provisions of this Section C.3, shall be adjusted to 9.3 apply during the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); Employment Term and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilitythereafter.

Gross-Up Payment. Payments under (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below in this Section C.1. and Section C.2. of this Exhibit 9, in the event it shall be made without regard to whether the deductibility of such payments (determined that any payment or any other payments or benefits to or for the benefit of Executive) would be limited or precluded distribution by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits Centura to or for the benefit of Executive (including, but not limited to, payments and benefits under whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this paragraphSection 9) constitutes an “excess parachute payment” within (a "Payment") would be subject to the meaning excise tax imposed by Section 4999 of Section 280G the Code or any interest or penalties are incurred by Executive with respect to such excise tax (the aggregate of such payments being excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excess Parachute Payments”"Excise Tax"), the Company then Executive shall promptly pay be entitled to Executive receive an additional payment (a "Gross-Up Payment") in an amount (the “gross-up payment”) such that after reduction for payment by Executive of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-up payment equals Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (b) Subject to the provisions of Section 9(c), all determinations required to be made under this Section 9, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a certified public accounting firm selected by Executive and reasonably acceptable to Centura as may be designated by Executive (the "Accounting Firm") which shall provide detailed supporting calculations both to Centura and Executive within 15 business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is reasonably requested by Centura. All fees and expenses of the Accounting Firm shall be borne solely by Centura. Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by Centura to Executive within five days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon Centura and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments will not have been made by Centura that should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the event that Centura exhausts its remedies pursuant to Section 9(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Centura to or for the benefit of Executive. (c) The Executive shall notify Centura in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Centura of a Gross-Up Payment (or an additional Gross-Up Payment). Such notification shall be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and shall apprise Centura of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Centura (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Centura notifies Executive in writing prior to the Excess Parachute Paymentsexpiration of such period that it desires to contest such claim, Executive shall: (i) give Centura any information reasonably requested by Centura relating to such claim, (ii) take such action in connection with contesting such claim as Centura shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by Centura and reasonably acceptable to Executive, (iii) cooperate with Centura in good faith in order effectively to contest such claim, and (iv) permit Centura to participate in any proceedings relating to such claim; provided, however, that to the extent Centura shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any gross-up Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment would be considered “deferred compensation” for purposes of Section 409A costs and expenses. Without limitation of the Code, the manner and time of payment, and the foregoing provisions of this Section C.39(c), Centura shall be adjusted control all proceedings (to the extent necessary (but only applicable to the extent necessaryExcise Tax and Gross-Up Payment) taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to comply pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and ▇▇▇cutive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Centura shall reasonably determine; provided, however, that if Centura directs Executive to pay such claim and sue for a refund, Centura shall advance the amount of such payment to ▇▇ecutive, on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Centura's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Centura pursuant to Section 9(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Centura's complying with the requirements of Section 409A 9(c)) promptly pay to Centura the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Centura pursuant to Section 9(c), a determination is made that Executive shall not be entitled to any refund with respect to such payment so that the payment claim and Centura does not give rise notify Executive in writing of its intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) expiration of the Code (the “Section 409A penalties”); 30 days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform be repaid and the amount of such advance shall offset, to the requirements of Section 409A of the Codeextent thereof, the amount of the grossGross-up payment shall Up Payment required to be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilitypaid.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“"Section 280G”") and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “"excess parachute payments” " under Section 4999 of the Code (the “"Excise Tax”"). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “"excess parachute payment” " within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “"Excess Parachute Payments”"), the Company shall promptly pay to Executive an additional amount (the “"gross-up payment”") that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s 's payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s 's expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “"accounting firm”"). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit (A) In the event it shall be made without regard to whether the deductibility of such payments determined that any payment, benefit or distribution (or any other payments combination thereof) by the Company or benefits to one or more trusts established by the Company for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits its employees, to or for the benefit of Executive (includingwhether paid or payable or distributed or distributable pursuant to the terms of this Agreement, but not limited toor otherwise) (a "Payment") is subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, payments together with any such interest and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being penalties, hereinafter collectively referred to as the “Excess Parachute Payments”"Excise Tax"), the Company Executive shall promptly pay be entitled to Executive receive an additional payment (a "Gross-Up Payment") in an amount (the “gross-up payment”) such that after reduction for payment by Executive of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such gross-up payment equals taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax with respect imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excess Parachute Excise Tax imposed upon the Payments; provided, that to . Notwithstanding the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the foregoing provisions of this Section C.34(i), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payment does not exceed 110% of the greatest amount that could be paid to Executive without giving rise to any Excise Tax (the "Safe Harbor Amount"), then no Gross-Up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, is reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be adjusted made by first reducing the payments under Section 4(h). (B) All determinations required to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of under this Section 409A of the Code4(i), the amount of the grossincluding whether and when a Gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments Up Payment is required and benefits include Excess Parachute Payments and, if so, the amount of such paymentsGross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by an independent accounting firm selected by the Company (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and Executive within ten business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company; provided that for purposes of determining the amount of any Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest effective rates applicable to individuals in the state or locality of Executive's residence or place of employment in the calendar year in which any such Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account limitations applicable to individuals subject to federal income tax at the highest marginal rates. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 4(i), shall be paid by the Company to Executive (or to the appropriate taxing authority on Executive's behalf) when the applicable tax is due. If the Accounting Firm determines that no Excise Tax owed with respect theretois payable by Executive, and it shall so indicate to Executive in writing. Any determination by the amount of any gross-up payment Accounting Firm shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.binding upon the

Gross-Up Payment. Payments under Section C.1. and Section C.2. 4.1 Regardless of this Exhibit shall be made without regard whether Executive becomes entitled to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or under this Agreement, if any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits received or to or for the benefit of be received by Executive (includingwhether pursuant to the terms of this Agreement or any other plan, but not limited to, arrangement or agreement with any System Company) (all such payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within benefits, excluding the meaning of Section 280G (the aggregate of such payments Gross-Up Payment, being hereinafter referred to as the “Excess Parachute "Total Payments”)") will be subject to the Excise Tax, the Company shall promptly pay to Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. 4.2 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) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b) (2) of the Code) unless, in the opinion of tax counsel (`Tax Counsel") reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the Closing, Company's independent auditor (the "Auditor"), such 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, (ii) all "excess parachute payments" within the meaning of section 280G(b) (I) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for all taxes services actually rendered (including but 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 limited subject to the Excise Tax, and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d) (3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 4), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. 4.3 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, Executive shall repay to Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in Executive'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 12 74(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 Gross-Up Payment), Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Executive with respect to such gross-up payment equals excess) within five (5) business days following the time that the amount of such excess is finally determined. Executive and Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Excess Parachute Total Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit (i) In the event it shall be made without regard to whether finally determined, in a proceeding that is non-appealable, that any payment, award, benefit or distribution by the deductibility of such payments Parent (or any other payments or benefits of its affiliated entities) to or for the benefit of Executive) would be limited the Executive (whether pursuant to the terms of this Agreement or precluded by Section 280G of the Code (“Section 280G”) and otherwise, but determined without regard to whether such any additional payments required under this Section 24(k) (or any other payments or benefitsa “Payment”) would is subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or any corresponding provisions of state or local tax laws, 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”). If , 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 portion interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes or employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the payments or benefits Gross-Up Payment equal to the Excise Tax imposed upon the Payments. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that Gross-Up Payments which will not have been made by the Parent should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Parent exhausts its remedies pursuant to Section 24(k)(ii) and the Executive thereafter is required to make a payment of any Excise Tax, any such Underpayment shall be promptly paid by the Parent to or for the benefit of the Executive. (ii) The Executive shall notify the Parent in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Parent of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph10) constitutes an “excess parachute payment” within business days after the meaning of Section 280G (the aggregate Executive is informed in writing of such payments being hereinafter referred claim and shall apprise the Parent of the nature of such claim and the date on which such claim is requested to as the “Excess Parachute Payments”), the Company be paid. The Executive shall promptly not pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited such claim prior to the Excise Tax) expiration of the 30-day period following the date on which it gives such notice to the Parent (or such shorter period ending on the date that any payment of taxes with respect to such gross-up payment equals claim is due). if the Excise Tax Parent notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Parent any information reasonably requested by the Parent relating to such claim; (B) take such action in connection with contesting such claim as the Parent shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Excess Parachute PaymentsParent; (C) cooperate with the Parent in good faith in order effectively to contest such claim; and (D) permit the Parent to participate in any proceedings relating to such claim; provided, however, that to the extent Parent shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any gross-up Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment would be considered “deferred compensation” for purposes of Section 409A of costs and expenses. Without limitation on the Code, the manner and time of payment, and the foregoing provisions of this Section C.3paragraph, the Parent shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Parent shall determine. provided, however, that if the Parent directs the Executive to pay such claim and ▇▇▇ for a refund, the Parent shall advance the amount of such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Parent’s control of the contest shall be adjusted limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (iii) if, after the receipt by the Executive of an amount advanced by the Parent pursuant to Section 24(k)(ii), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the extent necessary (but only to the extent necessary) to comply Parent’s complying with the requirements of Section 409A 24(k)(ii)) promptly pay to the Parent the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Parent pursuant to Section 24(k)(ii), a determination is made that the Executive shall not be entitled to any refund with respect to such payment so that claim and the payment Parent does not give rise notify the Executive in writing of its intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) expiration of the Code (the “Section 409A penalties”); 30 days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform be repaid and the amount of such advance shall offset, to the requirements of Section 409A of the Codeextent thereof, the amount of the grossGross-up payment Up Payment required to be paid. (1) Parent shall be determined pay or reimburse Executive for all costs and expenses, including, without regard to any gross-up for the Section 409A penalties. The determination limitation, court costs and attorneys’ fees, incurred by Executive as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount a result of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense claim by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than that, if successful, would require the Excise Tax (if any) determined payment by the accounting firmParent of the Gross-Up Payment, if Parent contests such claim as herein above provided or otherwise fails to timely pay the Company shall promptly augment the grossGross-up payment to address such higher Excise Tax liabilityUp Payment.

Gross-Up Payment. Payments under (a) Subject to the possible limitation set forth in Section C.1. and 8.1(b) below, if any payment or benefit received or to be received by Executive in connection with a Corporate Transaction or otherwise (“Payment”) would subject Executive to the excise tax (the “Excise Tax”) imposed by Section C.2. 4999 of this Exhibit the Internal Revenue Code of 1986, as amended (the “Code”), then Executive shall be made entitled to receive an additional payment from the Company, in an amount not to exceed five hundred thousand dollars ($500,000) (the “Gross-Up Payment”), such that after the payment of all taxes (including, without regard limitation, any income or employment taxes, any interest or penalties imposed with respect to whether such taxes, and any additional excise tax imposed by Section 4999 of the deductibility Code) on the Gross-Up Payment, Executive shall retain an amount equal to the full Excise Tax. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to have (i) paid federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made; (ii) paid federal employment taxes at Executive’s actual marginal rate for the calendar year in which the Gross-Up Payment is to be made; and (iii) paid applicable state and local income taxes at the highest 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. Except as otherwise provided herein, Executive shall not be entitled to any additional payments (or other indemnity arrangements in connection with the Payment or the Gross-Up Payment. Notwithstanding any other provision in Section 8.1, the aggregate amount of the Gross-Up Payment shall not exceed five hundred thousand dollars ($500,000). (b) Notwithstanding the foregoing, the amount of the Payment when aggregated with the Gross-Up Payment (the “Total Parachute Payments”) shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (i) the largest portion of the Total Parachute Payments that would result in no portion of the Total Parachute Payments being subject to the Excise Tax, or (ii) the largest portion, up to and including the total, of the Total Parachute Payments, whichever amount referenced in the foregoing (i) or (ii), after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax, results in Executive’s receipt of the greatest economic benefit notwithstanding that all or some portion of the Total Parachute Payments may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Total Parachute Payments equals the Reduced Amount, reduction shall occur in a manner necessary to provide Executive with the greatest economic benefit. If more than one manner of reduction of payments or benefits necessary to arrive at the Reduced Amount yields the greatest economic benefit, the payments and benefits shall be reduced pro rata. (c) The independent registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the event described in Section 280G(b)(2)(A)(i) of the Code shall make all determinations required to be made under this Section 8.1. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting such event, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm (the “Accounting Firm”) required to be made hereunder. The Accounting Firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within fifteen (15) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding and conclusive upon the Company and Executive. (d) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. If the Company exhausts its remedies pursuant to Section 8.1(e) hereof and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, and any such Underpayment, together with any additional penalties or interest thereon, shall be promptly paid by the Company to or for the benefit of Executive. (e) Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be limited or precluded by Section 280G given as soon as practicable but no later than ten (10) business days after Executive is informed in writing of such claim and shall apprise the Company of the Code nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the thirty (“Section 280G”) and without regard 30)-day period following the date on which Executive has given such notice to whether such payments the Company (or such shorter period ending on the date that any other payments or benefits) would subject Executive payment of taxes with respect to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) Give the Company any portion of information reasonably requested by the payments or benefits Company relating to or for such claim; (ii) Take such action in connection with contesting such claim as the benefit of Executive (Company shall reasonably request in writing from time to time, including, but not limited towithout limitation, payments accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) Cooperate with the Company in good faith in order effectively to contest such claim; and (iv) Permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and benefits under this Agreement but determined without regard to this paragraphpay directly all costs and expenses (including additional interest and penalties) constitutes incurred in connection with such contest and shall indemnify and hold Executive harmless, on an “excess parachute payment” within the meaning of Section 280G after-tax basis, for any Excise Tax or federal, state, and local income and employment tax (the aggregate including interest and penalties with respect thereto) imposed as a result of such payments being hereinafter referred to as representation and payment of costs and expenses. Without limitation on the “Excess Parachute Payments”foregoing provisions of this Section 8.1(e), the Company shall promptly control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs Executive to pay such claim and ▇▇▇ for a refund, the Company shall advance the amount of such payment to Executive, on an additional amount (the “grossinterest-up payment”) that after reduction for all taxes free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or federal, state, and local income and employment tax (including but not limited to the Excise Taxinterest or penalties with respect thereto) imposed with respect to such gross-up payment equals the Excise Tax advance or with respect to the Excess Parachute Paymentsany imputed income with respect to such advance; and provided, further, Executive shall not be required to extend the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due, other than an extension limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (f) If, after the receipt by Executive of any amount paid by the Company relating to a Gross-up Payment pursuant to Section 8.1(a) hereof or advanced by the Company pursuant to Section 8.1(e) hereof, Executive becomes entitled to receive any refund with respect to such amounts, Executive shall (subject to the Company’s complying with the requirements of Section 8.1(e) hereof) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 8.1(e) hereof, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid, and the amount of such advance shall offset, to the extent any grossthereof, the amount of Gross-up payment would Up Payment required to be considered “deferred compensation” for purposes of paid. (g) If, pursuant to regulations issued under Section 409A 280G or 4999 of the Code, the manner Company and time Executive are required to make a preliminary determination of paymentthe amount of an excess parachute payment and thereafter a redetermination of the Excise Tax is required or the Company is permitted to make a recalculation with regard to stock options and elects to do so under the applicable regulations, and the parties shall request the Accounting Firm to make such redetermination. If as a result of such redetermination an additional Gross-Up Payment is required, the amount thereof shall be paid by the Company to Executive within ten (10) business days of the receipt of the Accounting Firm’s determination. If the redetermination of the Excise Tax results in a reduction of the Excise Tax, Executive shall take such steps as the Company may reasonably direct in order to obtain a refund of the excess Excise Tax paid. If the Company determines that any suit or proceeding is necessary or advisable in order to obtain such refund, the provisions of this Section C.3, shall be adjusted 8.1(e) hereof relating to the extent necessary (but only contesting of a claim shall apply to the extent necessary) to comply with claim for such refund, including, without limitation, the requirements provisions concerning legal representation, cooperation by Executive, participation by the Company in the proceedings and indemnification by the Company. Upon receipt of Section 409A with respect to any such payment so that refund, Executive shall promptly pay the payment does not give rise amount of such refund to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, Company. If the amount of the gross-up income taxes otherwise payable by Executive in respect of the year in which Executive makes such payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination Company is reduced as to whether Executive’s payments and benefits include Excess Parachute Payments anda result of such payment, if soExecutive shall, no later than the filing of the income tax return in respect of such year, pay the amount of such paymentstax benefit to the Company. In the event there is a subsequent redetermination of Executive’s income taxes resulting in a reduction of such tax benefit, the Company shall, promptly after receipt of notice of such reduction, pay to Executive the amount of such reduction. If the Company objects to the calculation or recalculation of the tax benefit, as described in the preceding two sentences, the Accounting Firm shall make the final determination of the appropriate amount. Executive shall not be obligated to pay to the Company the amount of any Excise Tax owed with respect thereto, and further tax benefits that may be realized by her as a result of paying to the Company the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as initial tax benefit. (h) In the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability event that is higher than the Excise Tax is subsequently determined to be less than initially determined, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is determined (but, if anypreviously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-Up Payment that would not have been paid if the Excise Tax as subsequently determined had been applied initially in calculating the Gross-Up Payment, with the amount of such repayment determined by the accounting firmAccounting Firm; provided that the amount of required repayment by Executive shall be reduced, as the Accounting Firm may determine, in order to avoid putting Executive in a worse after-tax position than Executive would have enjoyed had the amount of Excise Tax been correctly determined in the first instance, such determination to be made on a basis consistent with the intention of this Section 8.1, which is to make Executive whole on an after-tax basis on account of any Excise Tax (including related interest and penalties) up to an aggregate amount of five hundred thousand dollars ($500,000). Executive and the Company shall promptly augment each have the gross-up payment right at all times to address such higher Excise Tax liabilityhave the Accounting Firm review and confirm or revise earlier calculations.

Gross-Up Payment. Payments under Section C.1. and Section C.2. (A) In the event that any payment or benefit received or to be received by the Executive (whether pursuant to the terms of this Exhibit shall be made without regard to whether the deductibility of such payments (Agreement or any other payments or benefits to or for the benefit of Executiveotherwise) would be limited subject (in whole, or precluded part), to the tax (the "Excise Tax") imposed by Section section 280G of the Internal Revenue Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code 1986 (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive "Code") (including, but not limited to, all such payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute called "Total Payments”"), the Company shall promptly pay to the Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income or employment taxes and Excise Tax upon the payment provided for by this Section 5, shall be equal to the 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) any payments or benefits received or to be received by the Executive (whether pursuant to the terms of this Agreement or otherwise) in connection with a "change" described in section 280G(b)(2)(A)(i) of the Code or the Executive's termination of employment shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and all taxes (including but not limited "excess parachute payments" within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the Executive 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, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the amount of excess parachute payments within the meaning of section 280G(b)(1) of the Code (after applying clause (i) above), and (iii) the value of any 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 Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date of the termination of the Executive's employment (or if there is no such termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 5(A)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount initially 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 the Executive with respect to such gross-up payment equals excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Excess Parachute Total Payments; provided, that to the extent any gross. (B) The Gross-up payment would Payment shall be considered “deferred compensation” made not later than the fifth (5th) day following the date of termination of the Executive's employment (or if there is no such termination, then the date on which the Gross-Up Payment is calculated for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary5(A) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”hereof); and further provided, however, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, if the amount of the gross-up payment shall Gross Up Payment cannot be finally determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of on or before such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firmday, the Company shall promptly augment pay to the gross-up Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payment to address which the Executive is clearly entitled and shall pay the remainder of such higher Excise Tax liabilitypayment (together with interest at the rate provided in section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the first required payment date. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in section 1274(b)(2)(B) of the Code). At the time that payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations, including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Gross-Up Payment. Whether or not the Executive becomes entitled to the payment provided under subsection (d) hereof, if any of the Total Payments under Section C.1. (as hereinafter defined) will be subject to the tax (the "Excise Tax") imposed by section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Company shall pay to the Executive, no later than the fifth day following the Date of Termination (or such other date as is hereinafter described), an additional amount (the "Gross-Up Payment") such that the net amount retained by him, after deduction of any Excise Tax on the Total Payments and Section C.2. of this Exhibit any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be made without regard equal to the Total Payments. For purposes of determining whether any of the deductibility Total Payments will be subject to the Excise Tax and the amount of such payments Excise Tax, (or any other i) all payments or benefits received or to be received by the Executive in connection with a Change in Control or for the benefit termination of the Executive's employment (whether payable pursuant to the terms of this Agreement or of any other plan, arrangement or agreement with the Company, its successors, any person whose actions result in a change in control or any person affiliated (or which, as a result of the completion of the transactions causing a Change in Control, will become affiliated) would be limited with the Company or precluded by Section 280G such person within the meaning of section 1504 of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to , excluding the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (includingGross-Up Payments, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute "Total Payments”")) shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel selected by the independent auditors of the Company (as of the date immediately prior to the Change in Control) and reasonably acceptable to the Executive, such 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, (ii) all "excess parachute payments" (within the meaning of section 280G(b)(1) of the Code) shall be treated as subject to the Excise Tax, unless in the opinion of such tax counsel such excess parachute payments 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" (within the meaning of section 280G(b)(3) of the Code), or are not otherwise subject to the Excise Tax, and (iii) the value of any noncash 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 Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income and employment taxes at the highest marginal rate of taxation in the state and locality of the residence of the Executive on the Date of Termination (or such other date as is hereinafter described), net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the Date of Termination (or such other date as is hereinafter described), the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax or a federal, state and local income and employment taxes deduction) plus interest on the amount of such repayment at 120% of the applicable federal rate (as defined in section 1274(d) of the Code). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the employment of the Executive, or at such other time as is hereinafter described (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 promptly pay to Executive make an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with in respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.such

Gross-Up Payment. Payments under Section C.1. and Section C.2. (i) Notwithstanding any other provi-sions of this Exhibit shall Agreement, in the event that any payment or benefit received or to be made without regard received by the Executive in connection with a Change in Control or the termination of the Executive's employment (whether pursuant to whether the deductibility terms of such payments this Agreement (the "Severance Payments") or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (all such payments or benefits to or for and benefits, including the benefit of ExecutiveSeverance Payments, being hereinafter called "Total Payments") would be limited subject (in whole or precluded by Section 280G of the Code (“Section 280G”part) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” ("Excise Tax") imposed under Section section 4999 of the Internal Revenue Code of 1986, as amended (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”"Code"), then the Company shall promptly pay to the Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 8(e), shall be equal to the Total Payments. (ii) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) all of the Total Payments shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, unless in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the Executive ("Tax Counsel"), 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, (B) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of Tax Counsel 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 (C) the value of any noncash 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 Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which occurs the Date of Termination (including but not limited or such earlier date on which any payment or benefit becomes subject to the Excise Tax) and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination (or such earlier date on which any payment or benefit becomes subject to the Excise Tax), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (iii) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in the Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment) the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that excess is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityfinally determined.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of (A) Anything in this Exhibit Agreement to the contrary notwithstanding, in the event it shall be made without regard to whether determined that any payment or distribution by the deductibility of such payments (Company, any individual or any other payments entity whose actions result in a Change in Control, or benefits their respective subsidiaries or affiliates to or for the benefit of the Executive (including any payment or benefits received in connection with a Change in Control or the Executive) would be limited or precluded by Section 280G 's termination of employment, whether pursuant to the Code (“Section 280G”) and without regard to whether such payments (terms of this Agreement or any other payments plan, arrangement or benefitsagreement) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, all such payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within benefits, excluding the meaning of Section 280G Gross-Up Payment (the aggregate of such payments as defined below), being hereinafter referred to as the “Excess Parachute "Total Payments”") will be subject to any excise tax imposed under section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (such tax, the "Excise Tax"), the Company shall promptly pay to the Executive an additional amount (the “gross"Gross Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-up payment”Up Payment, and after taking into account the phase out of itemized deductions and personal exemptions attributable to the Gross-Up Payment, shall be equal to the Total Payments. (B) that after reduction 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) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's independent auditor (the "Auditor") (which Tax Counsel may be the Company's general counsel), such 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, (ii) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for all taxes services actually rendered (including but 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 limited subject to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Payments under Section C.1(a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any Payment would be subject to the Excise Tax, then Executive shall be entitled to receive an additional payment (the "Gross-Up Payment") ---------------- in an amount such that, after payment by Executive of all Taxes (and any interest or penalties imposed with respect to such Taxes), including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. and Section C.2. Notwithstanding the foregoing provisions of this Exhibit Section 6.4(a), if it shall be determined that Executive is entitled to the Gross-Up Payment, but that the Parachute Value of all Payments does not exceed one hundred and ten percent (110%) of the Safe Harbor Amount, then except as provided below, no Gross-Up Payment shall be made without regard to Executive and the amounts payable under this Agreement, other than amounts or benefits provided under Article V of this Agreement or pursuant to any other option or equity grants to Executive (the "Subject Payments"), shall be reduced ---------------- (but not below zero) so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 7.3(a)(ii), unless an alternative method of reduction is elected by Executive, and in any event shall be made in such a manner as to maximize the Value of all Payments actually made to Executive. For purposes of reducing the Payments to the Safe Harbor Amount, only the Subject Payments shall be reduced. If the reduction of the Subject Payments would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, no amounts payable under the Agreement shall be reduced pursuant to this Section 6.4(a), and the Gross-Up Payment shall be made to Executive. The Company's obligation to make Gross-Up Payments under this Section 6.4 shall not be conditioned upon Executive's Termination of Employment. (b) Subject to the provisions of Section 6.4(c), all determinations required to be made under this Section 6.4, including whether and when a Gross-Up Payment is required, the deductibility amount of such payments Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young, LLP, or such other nationally recognized certified public accounting firm as may be designated by Executive (the "Accounting Firm"). The Accounting Firm shall provide --------------- detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the receipt of notice from Executive that there has been a Payment or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, Executive may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 6.4, shall be paid by the Company to Executive within five (5) business days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Company should have been made (the "Underpayment"), consistent with ------------ the calculations required to be made hereunder. In the event the Company exhausts its remedies pursuant to Section 6.4(c) and Executive thereafter is required to make a payment of any other payments or benefits Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive. (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would be limited or precluded require the payment by Section 280G the Company of the Code Gross-Up Payment. Such notification shall be given as soon as practicable, but no later than ten (“Section 280G”10) business days after Executive is informed in writing of such claim. The Executive shall apprise the Company of the nature of such claim and without regard the date on which such claim is requested to whether be paid. The Executive shall not pay such payments claim prior to the expiration of the thirty (30) calendar day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any other payments or benefits) would subject Executive payment of Taxes with respect to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”such claim is due). If any portion of the payments or benefits Company notifies Executive in writing prior to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate expiration of such payments being hereinafter referred period that the Company desires to contest such claim, Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the “Excess Parachute Payments”Company shall reasonably request in writing from time to time, including accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 6.4(c), the Company shall promptly control all proceedings taken in connection with such contest, and, at its or their sole discretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its or their sole discretion, either direct Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that, if the Company direct or directs Executive to pay such claim and sue for a refund, the Company shall advance the amount of ▇▇▇h payment to Executive, on an additional amount (the “grossinterest-up payment”) that after reduction for all taxes free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including but not limited to the Excise Taxinterest or penalties) imposed with respect to such grossadvance or with respect to any imputed income in connection with such advance; and provided, further, that any extension of the statute of limitations relating to payment of Taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which the Gross-up payment equals Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest, as the Excise Tax case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of a Gross-Up Payment or an amount advanced by the Company pursuant to Section 6.4(c), Executive becomes entitled to receive any refund with respect to the Excess Parachute Payments; providedExcise Tax to which such Gross-Up Payment relates or with respect to such claim, that Executive shall (subject to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply Company's complying with the requirements of Section 409A 6.4(c), if applicable) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after Taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 6.4(c), a determination is made that Executive shall not be entitled to any refund with respect to such payment so that claim and the payment Company do or does not give rise notify Executive in writing of its or their intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(Bexpiration of thirty (30) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); calendar days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments repaid and benefits include Excess Parachute Payments and, if so, the amount of such paymentsadvance shall be offset, to the extent thereof, against the amount of Gross-Up Payment required to be paid. (e) Notwithstanding any Excise Tax owed with respect theretoother provision of this Section 6.4, the Company may, in its sole discretion, withhold and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior pay over to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than or any other applicable taxing authority, for the Excise Tax (if any) determined by the accounting firmbenefit of Executive, the Company shall promptly augment the grossall or any portion of any Gross-up payment Up Payment, and Executive hereby consents to address such higher Excise Tax liabilitywithholding.

Gross-Up Payment. Payments under Section C.1. and Section C.2. 4.1 Regardless of this Exhibit shall be made without regard whether Executive becomes entitled to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or under this Agreement, if any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits received or to or for the benefit of be received by Executive (includingwhether pursuant to the terms of this Agreement or any other plan, but not limited to, arrangement or agreement with any System Company) (all such payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within benefits, excluding the meaning of Section 280G (the aggregate of such payments Gross-Up Payment, being hereinafter referred to as the “Excess Parachute "Total Payments”)") will be subject to the Excise Tax, the Company shall promptly pay to Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. 4.2 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) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b) (2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the Closing, Company's independent auditor (the "Auditor"), such 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, (ii) all "excess parachute payments" within the meaning of section 280G(b) (1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for all taxes services actually rendered (including but 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 limited subject to the Excise Tax, and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d) (3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 4), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. 4.3 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, Executive shall repay to Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in Executive'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 Gross-Up Payment), Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Executive with respect to such gross-up payment equals excess) within five (5) business days following the time that the amount of such excess is finally determined. Executive and Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Excess Parachute Total Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Payments In the event that any payment received by you or paid by the Company on behalf of you under Section C.1. and Section C.2. of this Exhibit shall Agreement or under any other plan, arrangement or agreement with the Company or any person whose actions result in a Change in Control (collectively, the "Total Payments") will be made without regard subject to whether the deductibility of such payments excise tax (the "Excise Tax") imposed by section 4999 (or any other payments or benefits to or for the benefit of Executivesuccessor provision) would be limited or precluded by Section 280G of the Internal Revenue Code of 1986, as amended (“the "Code"), the Company shall pay to you an additional amount (the "Gross-Up Payment") such that the net amount retained by you, after deduction of any Excise Tax on the Total Payments and on any federal, state and local income, excise and/or other taxes upon the Gross-Up Payment provided for by this Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive 6, shall be equal to the federal excise tax levied on certain “excess 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” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” " within the meaning of Section 280G 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, unless in the 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 aggregate 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 value of any 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 Code. For purposes of determining the amount of the Gross-Up Payment, you shall be deemed to pay federal income and other taxes at the highest applicable marginal rate of taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income and other taxes at the highest applicable marginal rate of taxation in the 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 payments state and local taxes and 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 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 amount attributable to the reduction in the excise tax, whichever is later, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and other taxes imposed on the Gross-Up Payment being hereinafter referred repaid by you to as the “Excess Parachute Payments”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 promptly pay to Executive make an additional amount Gross-Up Payment in respect of such excess (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) plus any interest, penalties or additions payable by you with respect to such gross-up payment equals 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 Excess Parachute Total Payments; provided, that . The Gross-Up Payment payable pursuant to this subsection shall be payable on the extent any gross-up payment would be considered “deferred compensation” for purposes earlier of (i) the date the Company is required to withhold the Excise Tax pursuant to Section 409A 4999 of the Code, or (ii) the manner and time of payment, and date you are required to pay the provisions of this Section C.3, Excise Tax. You shall be adjusted to notify the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount Company of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense audit or review by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service of your federal income tax return for the year in which a payment under this Agreement is made within ten (10) days of your receipt of such audit or review. In addition, you shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, notify the Company shall promptly augment of the gross-up payment to address final resolution of such higher Excise Tax liabilityaudit or review within ten (10) days of such resolution.

Gross-Up Payment. Payments (a) In the event the Employee becomes entitled to any amount or benefit payable or provided under Section C.1. and Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (Agreement or any other payments agreement, policy, plan, program or benefits to arrangement with the Company or for its subsidiaries or affiliates, or the benefit lapse or termination of Executive) would be limited any restriction under any agreement, policy, plan, program or precluded by Section 280G arrangement with the Company or its subsidiaries or affiliates (collectively, the “Payments”), and any of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would Payments become subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Code (the “Excise Tax”). If any portion ) by reason of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an being “excess parachute paymentpayments” within the meaning of Section 280G (of the aggregate of such payments being hereinafter referred to as Code, by and between the “Excess Parachute Payments”)Employee and the Company, the Company shall promptly pay to Executive the Employee an additional amount (the a “grossGross-up paymentUp Payment”) that such that, after reduction for all the Employee’s payment of the federal, state and local income taxes (including but not limited taking into account the loss of itemized deductions), employment tax (together with any interest or penalties with respect thereto) and Excise Tax on the Gross-Up Payment, the Employee retains a net amount equal to the Excise TaxTax imposed upon the Payments. A Gross-Up Payment shall be paid to the Employee or withheld and made on the Employee’s behalf to the applicable taxing authorities as soon as reasonably practicable, but in no event later than twenty (20) with respect business days, after the later of the date that it is determined that a Payment is subject to such gross-up payment equals the Excise Tax with respect and the date that the Excise Tax is required to be withheld and paid to the Excess Parachute Payments; provided, that applicable taxing authorities. (b) Any determination required under this Section 18 shall be made in writing by a third party selected by the Company’s Chief Employee Officer prior to the extent any gross-up payment would Closing (the “Firm”), whose determination shall be considered conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 18, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, including what constitutes “deferred reasonable compensation” for purposes of Section 409A 280G of the Code. (c) The Company and the Employee shall furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination hereunder. The Company shall bear all costs the Firm may reasonably incur in connection with any calculations contemplated hereunder. The Firm shall be required to provide its determination as soon as reasonably practicable, but in no event later than thirty (30) days after the Closing, and at such later time as reasonably requested in writing by the Employee. (d) If the Firm determines that no Excise Tax is payable by the Employee, the manner Employee will be provided detailed information to support that the Employee have a reasonable basis not to report any Excise Tax on the Employee’s federal, state or local income or other tax return, which information shall address what portion, if any, of the Payment constitutes “reasonable compensation” for purposes of Section 280G of the Code. If the Firm determines that an Excise Tax will be assessed with respect to the Payments, the Employee will be provided with detailed information for such position, including the basis for determining what portion, if any, of the Payments constitutes “reasonable compensation” for purposes of Section 280G of the Code. (e) If the Excise Tax is subsequently determined, either by the Firm or a taxing authority, to be less than the amount determined hereunder, the Employee shall repay to the Company, within five business days after the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by the Employee to the extent that such repayment results in a reduction in Excise Tax and/or federal and state and local income tax deduction). (f) The Employee is required to notify the Company promptly, but in no event later than ten (10) business days after receipt, of any written claim by any taxing authority that, if successful, would require the Employee to pay additional Excise Tax and/or any other taxes with respect to the Payments or the Gross-Up Payment that exceed the Gross-Up Payment previously made to the Employee. The Employee shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which the Employee gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Employee in writing prior to the expiration of such period that it desires to contest such claim, the Employee shall (i) give any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as shall reasonably request in writing from time to time, including, without limitation, coordinate with accepting legal representation with respect to such claim by an attorney expert in such area reasonably selected by the Company, it being understood that the Employee may also retain separate counsel at his sole cost; (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay during the period of paymentrepresentation directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Employee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim. In all events, the Company’s control of any contest shall be limited to issues the resolution of which would impact whether a Gross-Up Payment would be payable hereunder. The Employee shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority, and the Employee shall control any extension of the statute of limitations with respect to matters other than those directly related to the Excise Tax. (g) If the Excise Tax is subsequently determined by the taxing authority to exceed the amount of the Gross-Up Payment, the Company shall make an additional Gross-Up Payment in respect of such excess within five business days after the date that the amount of such excess is finally determined. In the event that the subsequent determinations as to the Excise Tax affect earlier Gross-Up Payment calculations under this Section 18, such amounts will be recalculated and the provisions of this Section C.318 applied based on the revised calculations. (h) Notwithstanding the preceding paragraphs of this Section 18, references to the Company shall include its successors, and Gross-Up Payments shall in no event be made later than the end of the year following the year in which the Employee remits the related taxes to the applicable taxing authorities. In all events the additional Gross-Up Payments shall be adjusted made not later than the end of the year following the year in which the taxes that are the subject of an audit or litigation are remitted to the extent necessary (but only to applicable taxing authority, or where as a result of such audit or litigation no taxes are remitted, the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) end of the Code (year following the “Section 409A penalties”); year in which the audit is completed or there is a final and further providednonappealable settlement or other resolution of the litigation, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to consistent with the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm.”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits received or to or for the benefit of be received by Executive (includingwhether pursuant to Section 4 of this Agreement or any other plan, but not limited to, arrangement or agreement with any System Company) (all such payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within benefits, excluding the meaning of Section 280G (the aggregate of such payments Gross-Up Payment, being hereinafter referred to as the “Excess Parachute "Total Payments”)") will be subject to the Excise Tax, the Executive's System Company employer shall promptly pay to Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. A. 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) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the Closing, Executive's System Company employer's independent auditor (the "Auditor"), such 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, (ii) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for all taxes services actually rendered (including but 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 limited subject to the Excise Tax, and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. B. In the event that the Excise Tax is finally deter▇▇▇▇d to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to Executive's System Company employer, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive, to the extent that such repayment results in a reduction in the Excise Tax and a dollar- for-dollar reduction in Executive'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 Gross-Up Payment), Executive's System Company employer shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Executive with respect to such gross-up payment equals excess) within five (5) business days following the time that the amount of such excess is finally determined. Executive and Executive's System Company employer shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Excess Parachute Total Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Payments under Section C.1. and Section C.2. 4.1 Regardless of this Exhibit shall be made without regard whether Executive becomes entitled to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or under this Agreement, if any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits received or to or for the benefit of be received by Executive (includingwhether pursuant to the terms of this Agreement or any other plan, but not limited to, arrangement or agreement with any System Company) (all such payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within benefits, excluding the meaning of Section 280G (the aggregate of such payments Gross-Up Payment, being hereinafter referred to as the “Excess Parachute "Total Payments”)") will be subject to the Excise Tax, the Company shall promptly pay to Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. 4.2 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) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b) (2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the Closing, Company's independent auditor (the "Auditor"), such 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, (ii) all "excess parachute payments" within the meaning of section 280G(b) (I) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for all taxes services actually rendered (including but 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 limited subject to the Excise Tax, and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d) (3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 4), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. 4.3 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, Executive shall repay to Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for- dollar reduction in Executive'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 Gross-Up Payment), Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Executive with respect to such gross-up payment equals excess) within five (5) business days following the time that the amount of such excess is finally determined. Executive and Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Excess Parachute Total Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Payments under Section C.1. and Section C.2. (i) Notwithstanding any other provisions of this Exhibit shall Agreement, in the event that any payment or benefit received or to be made without regard received by the Executive in connection with a Change in Control or the termination of the Executive's employment (whether pursuant to whether the deductibility terms of such payments this Agreement (the "SEVERANCE PAYMENTS") or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (all such payments or benefits to or for and benefits, including the benefit of ExecutiveSeverance Payments, being hereinafter called "TOTAL PAYMENTS") would be limited subject (in whole or precluded by Section 280G of the Code (“Section 280G”part) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” ("EXCISE TAX") imposed under Section section 4999 of the Internal Revenue Code of 1986, as amended (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”"CODE"), then the Company shall promptly pay to the Executive an additional amount (the “gross"GROSS-up payment”UP PAYMENT") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the payment provided for all taxes by this Section 8(e), shall be equal to the Total Payments. (including but not limited ii) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) with respect to such gross-up payment equals all of the Excise Tax with respect to Total Payments shall be treated as "parachute payments" within the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes meaning of Section 409A section 280G(b)(2) of the Code, unless in the manner opinion of tax counsel selected by the Company's independent auditors and time of payment, and the provisions of this Section C.3, shall be adjusted reasonably acceptable to the extent necessary ExecutivE (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability."TAX

Gross-Up Payment. Payments under Section C.1. (a) Anything in this Agreement to the contrary notwithstanding and Section C.2. of this Exhibit except as set forth below, in the event it shall be made without regard to whether the deductibility of such payments (or determined that any other payments or benefits to or for the benefit of Executive) Payment would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax, then Executive shall be entitled to receive an additional payment (the "Gross-Up -------- Payment") in an amount such that, after payment by Executive of all ------- Taxes (and any interest or penalties imposed with respect to such grossTaxes), including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-up payment equals Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax with respect to imposed upon the Excess Parachute Payments; provided, that to . Notwithstanding the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the foregoing provisions of this Section C.36.4(a), if it shall be determined that Executive is entitled to the Gross-Up Payment, but that the Parachute Value of all Payments does not exceed one hundred and ten percent (110%) of the Safe Harbor Amount, then except as provided below, no Gross-Up Payment shall be made to Executive and the amounts payable under this Agreement, other than amounts or benefits provided under Article V of this Agreement or pursuant to any other option or equity grants to Executive (the "Subject Payments"), shall be adjusted to the extent necessary reduced (but only to the extent necessarynot below ---------------- zero) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 7.3(a)(ii), unless an alternative method of reduction is elected by Executive, and in any event shall be made in such a manner as to maximize the Value of all Payments actually made to Executive. For purposes of reducing the Payments to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) Safe Harbor Amount, only the Subject Payments shall be reduced. If the reduction of the Code (Subject Payments would not result in a reduction of the “Parachute Value of all Payments to the Safe Harbor Amount, no amounts payable under the Agreement shall be reduced pursuant to this Section 409A penalties”6.4(a); , and further provided, that if, notwithstanding the immediately preceding proviso, the grossGross-up payment cannot Up Payment shall be made to conform Executive. The Company's obligation to make Gross-Up Payments under this Section 6.4 shall not be conditioned upon Executive's Termination of Employment. (b) Subject to the requirements provisions of Section 409A of the Code6.4(c), the amount of the grossall determinations required to be made under this Section 6.4, including whether and when a Gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if soUp Payment is required, the amount of such payments, the amount of any Excise Tax owed with respect thereto, Gross-Up Payment and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior assumptions to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.be

Gross-Up Payment. Payments under Section C.1(a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any Payment would be subject to the Excise Tax, then Executive shall be entitled to receive an additional payment (the "Gross-Up -------- Payment") in an amount such that, after payment by Executive of all ------- Taxes (and any interest or penalties imposed with respect to such Taxes), including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. and Section C.2. Notwithstanding the foregoing provisions of this Exhibit Section 6.4(a), if it shall be determined that Executive is entitled to the Gross-Up Payment, but that the Parachute Value of all Payments does not exceed one hundred and ten percent (110%) of the Safe Harbor Amount, then except as provided below, no Gross-Up Payment shall be made without regard to Executive and the amounts payable under this Agreement, other than amounts or benefits provided under Article V of this Agreement or pursuant to any other option or equity grants to Executive (the "Subject Payments"), shall be reduced (but not below zero) so that ---------------- the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 7.3(a)(ii), unless an alternative method of reduction is elected by Executive, and in any event shall be made in such a manner as to maximize the Value of all Payments actually made to Executive. For purposes of reducing the Payments to the Safe Harbor Amount, only the Subject Payments shall be reduced. If the reduction of the Subject Payments would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, no amounts payable under the Agreement shall be reduced pursuant to this Section 6.4(a), and the Gross-Up Payment shall be made to Executive. The Company's obligation to make Gross-Up Payments under this Section 6.4 shall not be conditioned upon Executive's Termination of Employment. (b) Subject to the provisions of Section 6.4(c), all determinations required to be made under this Section 6.4, including whether and when a Gross-Up Payment is required, the deductibility amount of such payments Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young, LLP, or such other nationally recognized certified public accounting firm as may be designated by Executive (the "Accounting Firm"). The Accounting Firm --------------- shall provide detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the receipt of notice from Executive that there has been a Payment or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, Executive may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 6.4, shall be paid by the Company to Executive within five (5) business days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Company should have been made (the "Underpayment"), ------------ consistent with the calculations required to be made hereunder. In the event the Company exhausts its or their remedies pursuant to Section 6.4(c) and Executive thereafter is required to make a payment of any other payments or benefits Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive. (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would be limited or precluded require the payment by Section 280G the Company of the Code Gross-Up Payment. Such notification shall be given as soon as practicable, but no later than ten (“Section 280G”10) business days after Executive is informed in writing of such claim. The Executive shall apprise the Company of the nature of such claim and without regard the date on which such claim is requested to whether be paid. The Executive shall not pay such payments claim prior to the expiration of the thirty (30) calendar day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any other payments or benefits) would subject Executive payment of Taxes with respect to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”such claim is due). If any portion of the payments or benefits Company notifies Executive in writing prior to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate expiration of such payments being hereinafter referred period that the Company desires to contest such claim, Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the “Excess Parachute Payments”Company shall reasonably request in writing from time to time, including accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 6.4(c), the Company shall promptly control all proceedings taken in connection with such contest, and, at its sole discretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its sole discretion, either direct Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible ▇▇nner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that, if the Company directs Executive to pay such claim and sue for a refund, the Company shall advance the amount o▇ ▇uch payment to Executive, on an additional amount (the “grossinterest-up payment”) that after reduction for all taxes free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including but not limited to the Excise Taxinterest or penalties) imposed with respect to such grossadvance or with respect to any imputed income in connection with such advance; and provided, further, that any extension of the statute of limitations relating to payment of Taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which the Gross-up payment equals Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest, as the Excise Tax case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of a Gross-Up Payment or an amount advanced by the Company pursuant to Section 6.4(c), Executive becomes entitled to receive any refund with respect to the Excess Parachute Payments; providedExcise Tax to which such Gross-Up Payment relates or with respect to such claim, that Executive shall (subject to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply Company's complying with the requirements of Section 409A 6.4(c), if applicable) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after Taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 6.4(c), a determination is made that Executive shall not be entitled to any refund with respect to such payment so that claim and the payment Company do or does not give rise notify Executive in writing of its or their intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(Bexpiration of thirty (30) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); calendar days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments repaid and benefits include Excess Parachute Payments and, if so, the amount of such paymentsadvance shall be offset, to the extent thereof, against the amount of Gross-Up Payment required to be paid. (e) Notwithstanding any Excise Tax owed with respect theretoother provision of this Section 6.4, the Company may, in its sole discretion, withhold and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior pay over to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than or any other applicable taxing authority, for the Excise Tax (if any) determined by the accounting firmbenefit of Executive, the Company shall promptly augment the grossall or any portion of any Gross-up payment Up Payment, and Executive hereby consents to address such higher Excise Tax liabilitywithholding.

Gross-Up Payment. Payments under Section C.1. and Section C.2. 4.1 Regardless of this Exhibit shall be made without regard whether Executive becomes entitled to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or under this Agreement, if any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits received or to or for the benefit of be received by Executive (includingwhether pursuant to the terms of this Agreement or any other plan, but not limited to, arrangement or agreement with any System Company) (all such payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within benefits, excluding the meaning of Section 280G (the aggregate of such payments Gross-Up Payment, being hereinafter referred to as the “Excess Parachute "Total Payments”)") will be subject to the Excise Tax, the Company shall promptly pay to Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. 4.2 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) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the Closing, Company's independent auditor (the "Auditor"), such 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, (ii) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for all taxes services actually rendered (including but 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 limited subject to the Excise Tax, and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment. Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 4), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. 4.3 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, Executive shall repay to Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for- dollar reduction in Executive'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 Gross-Up Payment), Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Executive with respect to such gross-up payment equals excess) within five (5) business days following the time that the amount of such excess is finally determined. Executive and Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Excess Parachute Total Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Payments under (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below in this Section C.1. and Section C.2. of this Exhibit 10, in the event it shall be made without regard to whether the deductibility of such payments (determined that any payment or any other payments or benefits to or for the benefit of Executive) would be limited or precluded distribution by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits Centura to or for the benefit of Executive (including, but not limited to, payments and benefits under whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this paragraphSection 10) constitutes an “excess parachute payment” within (a "Payment") would be subject to the meaning excise tax imposed by Section 4999 of Section 280G the Code or any interest or penalties are incurred by Executive with respect to such excise tax (the aggregate of such payments being excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excess Parachute Payments”"Excise Tax"), the Company then Executive shall promptly pay be entitled to Executive receive an additional payment (a "Gross-Up Payment") in an amount (the “gross-up payment”) such that after reduction for payment by Executive of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-up payment equals Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (b) Subject to the provisions of Section 10(c), all determinations required to be made under this Section 10, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a certified public accounting firm selected by Executive and reasonably acceptable to Centura as may be designated by Executive (the "Accounting Firm") which shall provide detailed supporting calculations both to Centura and Executive within 15 business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is reasonably requested by Centura. All fees and expenses of the Accounting Firm shall be borne solely by Centura. Any Gross-Up Payment, as determined pursuant to this Section 10, shall be paid by Centura to Executive within five days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon Centura and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments will not have been made by Centura that should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the event that Centura exhausts its remedies pursuant to Section 10(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Centura to or for the benefit of Executive. (c) The Executive shall notify Centura in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Centura of a Gross-Up Payment (or an additional Gross-Up Payment). Such notification shall be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and shall apprise Centura of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Centura (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Centura notifies Executive in writing prior to the Excess Parachute Paymentsexpiration of such period that it desires to contest such claim, Executive shall: (i) give Centura any information reasonably requested by Centura relating to such claim, (ii) take such action in connection with contesting such claim as Centura shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by Centura and reasonably acceptable to Executive, (iii) cooperate with Centura in good faith in order effectively to contest such claim, and (iv) permit Centura to participate in any proceedings relating to such claim; provided, however, that to the extent Centura shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any gross-up Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment would be considered “deferred compensation” for purposes of Section 409A costs and expenses. Without limitation of the Code, the manner and time of payment, and the foregoing provisions of this Section C.310(c), Centura shall be adjusted control all proceedings (to the extent necessary (but only applicable to the extent necessaryExcise tax and Gross-Up Payment) taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to comply pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Centura shall reasonably determine; provided, however, that if Centura directs Executive to pay such claim and ▇▇▇ for a refund, Centura shall advance the amount of such payment to Executive, on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Centura's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Centura pursuant to Section 10(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Centura's complying with the requirements of Section 409A 10(c)) promptly pay to Centura the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Centura pursuant to Section 10(c), a determination is made that Executive shall not be entitled to any refund with respect to such payment so that the payment claim and Centura does not give rise notify Executive in writing of its intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) expiration of the Code (the “Section 409A penalties”); 30 days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform be repaid and the amount of such advance shall offset, to the requirements of Section 409A of the Codeextent thereof, the amount of the grossGross-up payment shall Up Payment required to be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilitypaid.

Gross-Up Payment. Payments under Section C.1. In the event any payment or benefit arising in connection with Executive’s services to the Corporation, whether payable pursuant to this Agreement or otherwise, and Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (including any payment or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G reason of the Code (“Section 280G”) transaction consummated to that certain Agreement and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 Plan of the Code Merger among Blue Acquisition Group, Inc., Blue Merger Sub Inc. and Del Monte Foods Company, dated as of November 24, 2010 (the “Excise Tax”). If any portion Merger Agreement,” and the consummation of the payments or benefits to or for transactions contemplated thereby, the benefit of Executive “Transactions”) (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraphthe “Payment”) constitutes is an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the aggregate of such payments being hereinafter referred to as the “Excess Parachute PaymentsCode”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited and would be subject to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of excise tax imposed by Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) 4999 of the Code (the “Section 409A penaltiesExcise Tax”), then the Corporation shall pay Executive an additional cash payment (the “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes, including, without limitation, any income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, Executive shall retain an amount equal to the Excise Tax imposed upon the Payment and the Gross-Up Payment; and further providedprovided that, such Gross-Up Payment shall not be paid if the original Payment exceeds the Section 280G excess parachute payment criteria by less than five percent (5%). In the event the Payment exceeds the Section 280G excess parachute payment criteria by less than five percent (5%), then either (i) the Payment shall be reduced to an amount that ifwould result in no portion of the Payment being subject to the Excise Tax, notwithstanding the immediately preceding provisoor (ii), the gross-up payment cannot Payment shall be made to conform to the requirements of Section 409A paid in full, whichever of the Code, the amount of the grossforegoing (i) or (ii) results in a better after-up payment tax position to Executive. The Gross-Up Payment shall be determined without regard subject to and paid net of any gross-up for the Section 409A penaltiesapplicable withholding. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Gross-Up Payment or Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at reasonably determined by the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”)Company after consultation with its legal and tax advisors. Notwithstanding the foregoing, if any Gross-up Payment must be paid to Executive by the Internal Revenue Service shall assert an end of the calendar year next following the calendar year in which the income taxes and Excise Tax liability that is higher than are remitted to the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityapplicable taxing authority.

Gross-Up Payment. Payments under Section C.1. and Section C.2. (i) Notwithstanding any other provisions of this Exhibit shall Agreement, in the event that any payment or benefit received or to be made without regard received by the Executive in connection with a Change in Control or the termination of the Executive's employment (whether pursuant to whether the deductibility terms of such payments this Agreement (the "SEVERANCE PAYMENTS") or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (all such payments or benefits to or for and benefits, including the benefit of ExecutiveSeverance Payments, being hereinafter called "TOTAL PAYMENTS") would be limited subject (in whole or precluded by Section 280G of the Code (“Section 280G”part) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” ("EXCISE TAX") imposed under Section section 4999 of the Internal Revenue Code of 1986, as amended (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”"CODE"), then the Company shall promptly pay to the Executive an additional amount (the “gross"GROSS-up payment”UP PAYMENT") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the payment provided for by this Section 8(e), shall be equal to the Total Payments. (ii) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) all of the Total Payments shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, unless in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the Executive ("TAX COUNSEL"), 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, (B) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of Tax Counsel 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 (C) the value of any noncash 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 Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which occurs the Date of Termination (including but not limited or such earlier date on which any payment or benefit becomes subject to the Excise Tax) and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination (or such earlier date on which any payment or benefit becomes subject to the Excise Tax), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (iii) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in the Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment) the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that excess is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityfinally determined.

Gross-Up Payment. Payments under Section C.1. and Section C.2. The provisions of this Exhibit Section 12 shall only be made without regard in force and effect if a Change in Control Event (as defined below) is effected within the twenty-four (24)-month period measured from the Commencement Date and shall automatically become null and void should such a Change in Control Event not be effected prior to whether the deductibility expiration of such payments that twenty-four (24)-month period: (a) In the event it is determined that any payment or distribution of any other payments or benefits type to or for the benefit of the Executive) would be limited , by the Company, any of its affiliates, any Person who acquires ownership or precluded by Section 280G effective control of the Code (“Section 280G”) and without regard to whether such payments (Company or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 ownership of the Code (the “Excise Tax”). If any a substantial portion of the payments or benefits to or for the benefit of Executive Company’s assets (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the aggregate “Code”), and the regulations thereunder—a “Change in Control Event”) or any affiliate of such payments being hereinafter Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Total Payments”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the “Excess Parachute PaymentsExcise Tax”), then the Company shall promptly pay Executive will be entitled to Executive receive an additional amount payment (the a “grossGross-up paymentUp Payment”) in an amount such that after reduction for payment by the Executive of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including any Excise Tax imposed upon the Gross-up payment equals Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax with respect imposed upon the Total Payments. (b) All determinations as to whether any of the Excess Parachute Payments; provided, that to Total Payments are “parachute payments” (within the extent any gross-up payment would be considered “deferred compensation” for purposes meaning of Section 409A 280G of the Code), the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the grosswhether a Gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if soUp Payment is required, the amount of such paymentsGross-Up Payment, and any amounts relevant to the last sentence of the paragraph above, will be made by an independent registered public accounting firm selected by the Company from among the largest four accounting firms in the United States (the “Accounting Firm”). The Accounting Firm will provide all applicable determinations with respect to any of the Total Payments that become due and payable at the time of the Change in Control Event (the “Change in Control Determination”), together with detailed supporting calculations regarding the amount of the Excise Tax, any required Gross-Up Payment and any other relevant matter, both to the Company and the Executive within ten (10) business days after the effective date of the Change in Control Event or such earlier time as is requested by the Company or the Executive (if the Executive reasonably believes that any of the Total Payments may be subject to the Excise Tax owed Tax). In addition, the Accounting Firm will provide all applicable determinations with respect theretoto any of the Total Payments that become due and payable at the time of the Executive’s Separation from Service (the “Separation from Service Determination”), and together with detailed supporting calculations regarding the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax Tax, any required Gross-Up Payment and any other relevant matter, both to the Company and the Executive within ten (10) business days after the date of the Executive’s Separation from Service. The Change in Control and Separation from Service Determinations made by the Accounting Firm will be binding upon the Company and the Executive. The Gross-Up Payment (if any) determined on the basis of the Change in Control Determination shall be paid to or on behalf of Executive within five (5) business days after the completion of such Determination or (if later) at the time the related Excise Tax is remitted to the appropriate tax authorities. The Gross-Up Payment (if any) determined on the basis of the Separation from Service Determination shall be paid to or on behalf of Executive within five (5) business days after the completion of such Determination or (if later) at the time the related Excise Tax is remitted to the appropriate tax authorities. (c) In the event that the Executive’s actual Excise Tax liability is determined by a Final Determination to be greater than the accounting firmExcise Tax liability taken into account for purposes of any Gross-Up Payment or Payments initially made to the Executive pursuant to the provisions of Section 12(b), then within forty-five (45) days following that Final Determination, the Executive shall notify the Company shall promptly augment of such determination, and the grossAccounting Firm shall, within thirty (30) days thereafter, make a new Excise Tax calculation based upon that Final Determination and provide the Company and the Executive with the supporting calculations for any supplemental Gross-up payment Up Payment attributable to address such higher that excess Excise Tax liability. The Company shall make the supplemental Gross-Up payment to the Executive within five (5) business days following the completion of the applicable calculations or (if later) at the time such excess tax liability is remitted to the appropriate tax authorities. In the event that the Executive’s actual Excise Tax liability is determined by a Final Determination to be less than the Excise Tax liability taken into account for purposes of any Gross-Up Payment or Payments initially made to the Executive pursuant to the provisions of Section 12(b), then the Executive shall refund to the Company, promptly upon receipt, any federal or state tax refund attributable to the Excise Tax overpayment. For purposes of this Section 12(c), a “Final Determination” means an audit adjustment by the Internal Revenue Service that is either (i) agreed to by both the Executive and the Company (such agreement by the Company to be not unreasonably withheld) or (ii) sustained by a court of competent jurisdiction in a decision with which the Executive and the Company concur or with respect to which the period within which an appeal may be filed has lapsed without a notice of appeal being filed.

Gross-Up Payment. Payments under Section C.1. and Section C.2. (A) Whether or not Executive becomes entitled to the Severance Payments, if any payments or benefits received or to be received by Executive whether pursuant to the terms of this Exhibit shall be made without regard to whether the deductibility of such payments (Agreement or any other payments plan, arrangement or benefits to agreement with the Company, or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (with any Person whose actions result in a Change in Control or any other Person affiliated with the Company or such Person (such payments or benefits) would subject Executive to , excluding the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code Gross-Up Payment (the “Excise Tax”as defined below). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Total Payments”) are subject to the Excise Tax (any excise tax imposed under Section 4999 of the Code ), the Company shall promptly pay to Executive an additional amount (the “grossGross-up paymentUp Payment”) such that the net amount retained by Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (B) 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) all of the Total Payments shall be treated as “parachute payments” (within the meaning of Code Section 280G(b)(2)) unless, in the opinion of the Company, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Code Section 280G(b)(4)(A), (ii) all “excess parachute payments” within the meaning of Code Section 280G(b)(1) shall be treated as subject to the Excise Tax unless, in the opinion of the Company, such excess parachute payments (in whole or in part) represent reasonable compensation for all taxes services actually rendered (including but within the meaning of Code Section 280G(b)(4)(B)) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not limited subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company in accordance with the principles of Code Section 280G(d)(3) and (4). The Company and Executive agree that the determinations described in this Section 4.2(B) shall take the form of a letter from the Company accompanied by calculations prepared by the Company and certified by a national accounting firm selected by the Company. (C) The Gross-Up Payment (or portion thereof) will be paid to Executive on the day of the payment of the Total Payments (or portion thereof) that give rise to the Excise Tax; provided, however, that if the amount of such Gross-Up Payment (or portion thereof) cannot be fully determined on or before the date on which payment is due, the Company will pay to Executive by such date an amount estimated in good faith by the Company to be the minimum amount of such Gross-Up Payment (or portion thereof) and will pay the remainder of such Gross-Up Payment (or portion thereof) (together with interest at the rate provided in Code Section 1274(b)(2)(B)) as soon as the amount thereof can be determined, but in no event later than 45 days after complete payment of the Total Payments. Further, in the event that on the day of payment of the Total Payments (or portion thereof) (or the 45-day period following such payments), no Gross-Up Payment (or portion thereof) is determined by the Company to be due and it is subsequently determined that a Gross-Up Payment (or portion thereof) is owing to Executive, such Gross-Up Payment (or portion thereof) will be made by the Company to Executive at the date that such Gross-Up Payment amount (or portion thereof) is determined by the Company to be payable to Executive. (D) 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, Executive shall repay to the Company, within five business days following the later of the date that the amount of such reduction in the Excise Tax is fully determined and the date that such amount is fully refunded to Executive by the Internal Revenue Service, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment) being repaid by Executive, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in Executive’s taxable income and wages for purposes of federal, state and local income and employment taxes. In the event that the Excise Tax is determined to exceed the amount originally remitted by Executive which was taken into account hereunder in calculating the Gross-Up Payment and Executive is obliged to remit additional Excise Taxes, Executive shall provide the Company with written notice advising as to the amount of additional Excise Taxes which were so remitted and the date on which they were so remitted. As soon as practicable following receipt of such notice (but not later than the end of the taxable year following the year in which the additional Excise Taxes were remitted by Executive), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Executive with respect to such gross-up payment equals excess Excise Taxes). Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Excess Parachute Total Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Payments under Section C.1. and Section C.2. If there is a change in ownership or control of MF Global that causes any payment or distribution by any member of the MF Global Group or any other person or entity to you or for your benefit (whether paid or payable or distributed or distributable pursuant to the terms of this Exhibit shall be made Agreement or otherwise, but determined without regard to whether the deductibility of such any additional payments required under this Section 9) (or any other payments or benefits a "Payment") to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Code (such excise tax, together with any interest or penalties incurred by you with respect to such excise tax, the “"Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”"), the Company then you shall promptly pay be entitled to Executive receive an additional payment (a "Gross-Up Payment") in an amount (the “gross-up payment”) such that after reduction for payment by you of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-up payment equals Up Payment, you will retain an amount of the Gross-Up Payment equal to the Excise Tax with respect to imposed upon the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if it is determined that you are entitled to a Gross-Up Payment but that the Internal Revenue Service shall assert an Payments would not be subject to the Excise Tax liability if the Payments were reduced by an amount that is higher less than 10% of the Payments, then the Payments will be reduced to the maximum amount that would not result in the imposition of the Excise Tax (the "Safe Harbor Amount"). If a reduction in the Payments is necessary so that the Payments equal the Safe Harbor Amount and none of the Payments is Nonqualified Deferred Compensation, then the reduction shall occur in the manner you elect in writing prior to the date of payment. If any Payment constitutes Nonqualified Deferred Compensation or if any) you fail to elect an order, then the payments to be reduced will be determined by in a manner which has the accounting firmleast economic cost to you and, to the Company shall promptly augment extent the gross-up economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to address such higher Excise Tax liabilityyou, until the reduction is achieved.

Gross-Up Payment. Payments under Section C.1. and Section C.2. (A) Whether or not the Executive becomes entitled to the Severance Payments, if any payments or benefits received or to be received by the Executive whether pursuant to the terms of this Exhibit shall be made without regard to whether the deductibility of such payments (Agreement or any other payments plan, arrangement or benefits to agreement with the Company, or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (with any Person whose actions result in a Change in Control or any other Person affiliated with the Company or such Person (such payments or benefits) would subject Executive to , excluding the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (includingGross-Up Payment, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Total Payments”)) are subject to the Excise Tax, the Company shall promptly pay to the Executive an additional amount (the “grossGross-up paymentUp Payment”) such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (B) 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) all of the Total Payments shall be treated as “parachute payments” (within the meaning of Code Section 280G(b)(2)) unless, in the opinion of the Company, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Code Section 280G(b)(4)(A), (ii) all “excess parachute payments” within the meaning of Code Section 280G(b)(1) shall be treated as subject to the Excise Tax unless, in the opinion of the Company, such excess parachute payments (in whole or in part) represent reasonable compensation for all taxes services actually rendered (including but within the meaning of Code Section 280G(b)(4)(B)) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not limited subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company in accordance with the principles of Code Section 280G(d)(3) and (4). The Company and the Executive agree that the determinations described in this Section 4.2(B) shall take the form of a letter from the Company accompanied by calculations prepared by a national accounting firm selected by the Company (the “Accounting Firm”). (C) The Gross-Up Payment (or portion thereof) will be paid to the Executive on the day of the payment of the Total Payments (or portion thereof) that give rise to the Excise Tax; provided, however, that if the amount of such Gross-Up Payment (or portion thereof) cannot be fully determined on or before the date on which payment is due, the Company will pay to the Executive by such date an amount estimated in good faith by the Accounting Firm to be the minimum amount of such Gross-Up Payment (or portion thereof) and will pay the remainder of such Gross-Up Payment (or portion thereof) (together with interest at the rate provided in Code Section 1274(b)(2)(B)) as soon as the amount thereof can be determined, but in no event later than 45 days after complete payment of the Total Payments. Further, in the event that on the day of payment of the Total Payments (or portion thereof) (or the 45-day period following such payments), no Gross-Up Payment (or portion thereof) is determined by the Accounting Firm to be due and it is subsequently determined that a Gross-Up Payment (or portion thereof) is owing to the Executive, such Gross-Up Payment (or portion thereof) will be made by the Company to the Executive at the date that such Gross-Up Payment amount (or portion thereof) is determined by the Accounting Firm to be payable to the Executive. (D) 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, the Executive shall repay to the Company, within five business days following the later of the date that the amount of such reduction in the Excise Tax is fully determined and the date that such amount is fully refunded to the Executive by the Internal Revenue Service, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment) being repaid by the Executive, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Executive’s taxable income and wages for purposes of federal, state and local income and employment taxes. In the event that the Excise Tax is determined to exceed the amount originally remitted by the Executive which was taken into account hereunder in calculating the Gross-Up Payment and the Executive is obliged to remit additional Excise Taxes, the Executive shall provide the Company with written notice advising as to the amount of additional Excise Taxes which were so remitted and the date on which they were so remitted. As soon as practicable following receipt of such notice (but not later than the end of the taxable year following the year in which the additional Excise Taxes were remitted by the Executive), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such gross-up payment equals excess Excise Taxes). The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Excess Parachute Total Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Payments under Section C.1(a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any Payment would be subject to the Excise Tax, then Executive shall be entitled to receive an additional payment (the "Gross-Up Payment") ---------------- in an amount such that, after payment by Executive of all Taxes (and any interest or penalties imposed with respect to such Taxes), including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. and Section C.2. Notwithstanding the foregoing provisions of this Exhibit Section 6.4(a), if it shall be determined that Executive is entitled to the Gross-Up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then except as provided below, no Gross-Up Payment shall be made without regard to Executive and the amounts payable under this Agreement, other than amounts or benefits provided under Article V of this Agreement or pursuant to any other option or equity grants to Executive (the "Subject Payments"), shall be reduced (but not below ---------------- zero) so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 7.3(a)(ii), unless an alternative method of reduction is elected by Executive, and in any event shall be made in such a manner as to maximize the Value of all Payments actually made to Executive. For purposes of reducing the Payments to the Safe Harbor Amount, only the Subject Payments shall be reduced. If the reduction of the Subject Payments would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, no amounts payable under the Agreement shall be reduced pursuant to this Section 6.4(a), and the Gross-Up Payment shall be made to Executive. The Company's obligation to make Gross-Up Payments under this Section 6.4 shall not be conditioned upon Executive's Termination of Employment. (b) Subject to the provisions of Section 6.4(c), all determinations required to be made under this Section 6.4, including whether and when a Gross-Up Payment is required, the deductibility amount of such payments Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young, LLP, or such other nationally recognized certified public accounting firm as may be designated by Executive (the "Accounting Firm"). The Accounting Firm shall provide --------------- detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the receipt of notice from Executive that there has been a Payment or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, Executive may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 6.4, shall be paid by the Company to Executive within five (5) business days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Company should have been made (the "Underpayment"), ------------ consistent with the calculations required to be made hereunder. In the event the Company exhausts its or their remedies pursuant to Section 6.4(c) and Executive thereafter is required to make a payment of any other payments or benefits Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive. (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would be limited or precluded require the payment by Section 280G the Company of the Code Gross-Up Payment. Such notification shall be given as soon as practicable, but no later than ten (“Section 280G”10) business days after Executive is informed in writing of such claim. The Executive shall apprise the Company of the nature of such claim and without regard the date on which such claim is requested to whether be paid. The Executive shall not pay such payments claim prior to the expiration of the thirty (30) calendar day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any other payments or benefits) would subject Executive payment of Taxes with respect to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”such claim is due). If any portion of the payments or benefits Company notifies Executive in writing prior to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate expiration of such payments being hereinafter referred period that the Company desires to contest such claim, Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the “Excess Parachute Payments”Company shall reasonably request in writing from time to time, including accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 6.4(c), the Company shall promptly control all proceedings taken in connection with such contest, and, at its or their sole discretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its or their sole discretion, either direct Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible m▇▇▇er, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that, if the Company direct or directs Executive to pay such claim and sue for a refund, the Company shall advance the amount of ▇▇▇h payment to Executive, on an additional amount (the “grossinterest-up payment”) that after reduction for all taxes free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including but not limited to the Excise Taxinterest or penalties) imposed with respect to such grossadvance or with respect to any imputed income in connection with such advance; and provided, further, that any extension of the statute of limitations relating to payment of Taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which the Gross-up payment equals Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest, as the Excise Tax case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of a Gross-Up Payment or an amount advanced by the Company pursuant to Section 6.4(c), Executive becomes entitled to receive any refund with respect to the Excess Parachute Payments; providedExcise Tax to which such Gross-Up Payment relates or with respect to such claim, that Executive shall (subject to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply Company's complying with the requirements of Section 409A 6.4(c), if applicable) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after Taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 6.4(c), a determination is made that Executive shall not be entitled to any refund with respect to such payment so that claim and the payment Company does not give rise notify Executive in writing of its or their intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(Bexpiration of thirty (30) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); calendar days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments repaid and benefits include Excess Parachute Payments and, if so, the amount of such paymentsadvance shall offset, to the extent thereof, against the amount of Gross-Up Payment required to be paid. (e) Notwithstanding any Excise Tax owed with respect theretoother provision of this Section 6.4, the Company may, in its sole discretion, withhold and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior pay over to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than or any other applicable taxing authority, for the Excise Tax (if any) determined by the accounting firmbenefit of Executive, the Company shall promptly augment the grossall or any portion of any Gross-up payment Up Payment, and Executive hereby consents to address such higher Excise Tax liabilitywithholding.

Gross-Up Payment. Payments under Section C.1. If a Change in Control shall occur during the first two years after the effectiveness of the Merger, the following shall apply: (a) If there is a Termination Other Than for Cause or Resignation for Good Reason within one year after a Change in Control, and Section C.2. if any of this Exhibit shall the payments or benefits received or to be made without regard received by McCashin in connection with a Change in Control or McCashin ceasing t▇ ▇▇▇▇▇ as Chairman (whether pursuant to whether the deductibility of such payments (terms ▇▇ ▇▇▇▇ Agreement or any other payments plan, arrangement or benefits to or for agreement with the benefit of ExecutiveCompany) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether all such payments (or any other payments or and benefits, excluding the Gross-Up Payment, referred to as the "TOTAL PAYMENTS") would will be subject Executive to the federal excise tax levied on certain “excess parachute payments” (the "EXCISE TAX") imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “"CODE"), the Company shall pay, at the time or times specified in Section 3.5(d), to McCashin additional amounts (the "GROSS-UP PAYMENT") such that the ne▇ ▇▇▇▇▇▇ retained by McCashin, after deduction of any Excise Tax on the Total Payments and ▇▇▇ ▇▇▇eral, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax”, (A) all of the Total Payments shall be treated as "parachute payments" (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("TAX COUNSEL") selected by those individuals who were member of the Company's Board of Directors immediately prior to the effective date of the Change in Control and reasonably acceptable to McCashin, such payments or benefits (in whole or in part) should not ▇▇ ▇▇▇▇▇ed by the courts as constituting parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (B) all "excess parachute payments" within the meaning of Section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) should be treated by the courts as representing reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code), or are otherwise not subject to the Excise Tax, and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. All fees and expenses of the Tax Counsel shall be borne solely by the Company. (c) For purposes of determining the amount of the Gross-Up Payment, McCashin shall be deemed to pay Federal income tax at the highest sta▇▇▇ ▇▇▇▇inal income tax rates for the calendar years in which the Gross-Up Payments are to be made and state and local income taxes at the highest stated marginal rates of taxation in the state and locality of McCashin's residence in the calendar year in which the Gross-Up Payme▇▇▇ ▇▇▇ ▇▇ be made, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes, taking into account the reduction in itemized deductions under Section 68 of the Code, but not taking into account alternative minimum taxes. (d) Installments of the Gross-Up Payments shall be paid (including by the Company making a withholding payment to the tax authorities) as the Total Payments are paid to McCashin, unless the Excise Tax is due at an earlier date, in which c▇▇▇, ▇▇▇ Gross-Up Payment shall be made at such earlier date, or unless it is initially determined by the Company or the Tax Counsel that the Total Payments are not subject to the Excise Tax but after payment of the Total Payments, it is finally determined following the proceedings described in Section 3.5(e) and (f) that the Total Payments are subject to the Excise Tax, in which case the Gross-Up Payment shall be made upon the imposition upon McCashin of the Excise Tax following the proceedings described in Sec▇▇▇▇ ▇.▇(e) and (f). (e) McCashin shall notify the Company in writing of any claim by the Inte▇▇▇▇ ▇▇▇enue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after McCashin is informed in writing of such claim and shall describe the ▇▇▇▇▇▇ ▇f such claim and the date on which such claim is requested to be paid. McCashin shall not pay such claim prior to the expiration of the thir▇▇ (▇▇) day period following the date on which McCashin gives such notice to the Company (or such shorter period end▇▇▇ ▇▇ ▇he date that any payment of taxes with respect to such claim is due). If the Company notifies McCashin in writing prior to the expiration of such period that it de▇▇▇▇▇ ▇▇ contest such claim, McCashin shall: (i) give the Company an▇ ▇▇▇▇▇▇ation reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company and reasonably satisfactory to McCashin; (iii) cooperate with the Company i▇ ▇▇▇▇ ▇aith in order to effectively contest such claim; and (iv) permit the Company to control any portion of proceedings relating to such claim as provided below; provided, however, that the payments or benefits to or for the benefit of Executive Company shall bear and pay directly all costs and expenses (including, but not limited to, payments additional interest and benefits under this Agreement but determined without regard to this paragraphpenalties and related legal, consulting or other similar fees) constitutes incurred in connection with such contest and shall indemnify and hold McCashin harmless, on an “excess parachute payment” within the meaning of Section 280G after-tax basis, for any Excise Tax or other ▇▇▇ (the aggregate ▇▇cluding interest and penalties with respect thereto) imposed as a result of such payments being hereinafter referred representation and payment of costs and expenses. (f) The Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct McCashin to pay the tax claimed and sue for a refund or contest the c▇▇▇▇ ▇▇ any permissible manner, and ▇▇▇ashin agrees to prosecute such contest to a determination before a▇▇ ▇▇▇▇▇istrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the “Excess Parachute Payments”)Company shall determine; provided, however, that if the Company directs McCashin to pay such claim and sue for a refund, the Company shall promptly pay to Executive ad▇▇▇▇▇ ▇▇e amount of such paymen▇ ▇o McCashin on an additional amount interest-free basis, and shall indemnify and hold McCa▇▇▇▇ ▇▇▇mless, on an after-tax basis, from any Excise Tax or othe▇ ▇▇▇ (the “gross-up payment”▇ncluding interest or penalties with respect thereto) that after reduction for all taxes (including but not limited to the Excise Tax) imposed with respect to such gross-up payment equals the Excise Tax advance or with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A imputed income with respect to such payment so advance; and provided, further, that if McCashin is required to extend the payment does not give rise statute of limitations to enable t▇▇ ▇▇▇▇▇ny to contest such claim, McCashin may limit this extension solely to such claim. The Company's ▇▇▇▇▇▇▇ of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and McCashin shall be entitled to settle or contest, as the case may be, ▇▇▇ ▇▇▇▇r issue raised by the Internal Revenue Service or any other taxing authority. In addition, no position may be taken nor any final resolution be agreed to by the Company without McCashin's consent if such position or resolution could reasonably be ▇▇▇▇▇▇▇▇ to adversely affect McCashin (including any other tax position of McCashin unrelated to t▇▇ ▇▇▇▇▇rs covered hereby). (▇) ▇n the event that McCashin receives a refund of the Excise Tax previously paid, McCashi▇ ▇▇▇▇▇ repay to the interest or additional tax amounts described at Section 409A(a)(1)(BCompany, within five (5) or Section 409A(b)(4) business days fo▇▇▇▇▇▇▇ the receipt of such refund of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if soExcise Tax previously paid, the amount of such payments, the amount of refund plus any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense interest received by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if McCashin from the Internal Revenue Service shall assert on the refund, and an Excise Tax liability amou▇▇ ▇qual to the reduction in McCashin's Federal, state and local income tax assuming that is higher than the Excise Tax (if any) determined repa▇▇▇▇▇ ▇▇ ▇eductible, using the assumptions set forth in Section 2.5(c). If, after the receipt by McCashin of an amount advanced by the accounting firmCompany in connection with an E▇▇▇▇▇ ▇▇x claim, a determination is made that McCashin shall not be entitled to any refund with respect to such cla▇▇ ▇▇▇ ▇he Company does not notify McCashin in writing of its intent to contest the Company denial of such refun▇ ▇▇▇▇▇ to the expiration of thirty (30) days after such determination, such advance shall promptly augment the gross-up payment be forgiven and shall not be required to address such higher Excise Tax liabilitybe repaid.

Gross-Up Payment. Payments under Section C.1. and Section C.2. The provisions of this Exhibit Section 12 shall only be made without regard to whether in force and effect for the deductibility twenty-four (24)-month period measured from the Commencement Date and shall automatically become null and void upon the expiration of such payments that twenty-four (24)-month period: (a) In the event it will be determined that any payment or distribution of any other payments or benefits type to or for the benefit of the Executive) would be limited , by the Company, any of its affiliates, any Person who acquires ownership or precluded by Section 280G effective control of the Code (“Section 280G”) and without regard to whether such payments (Company or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 ownership of the Code (the “Excise Tax”). If any a substantial portion of the payments or benefits to or for the benefit of Executive Company’s assets (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the aggregate “Code”), and the regulations thereunder--a “Change in Control Event”) or any affiliate of such payments being hereinafter Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Total Payments”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the “Excess Parachute PaymentsExcise Tax”), then the Company shall promptly pay Executive will be entitled to Executive receive an additional amount payment (the a “grossGross-up paymentUp Payment”) in an amount such that after reduction for payment by the Executive of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including any Excise Tax imposed upon the Gross-up payment equals Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax with respect imposed upon the Total Payments. (b) All determinations as to whether any of the Excess Parachute Payments; provided, that to Total Payments are “parachute payments” (within the extent any gross-up payment would be considered “deferred compensation” for purposes meaning of Section 409A 280G of the Code), the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the grosswhether a Gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if soUp Payment is required, the amount of such paymentsGross-Up Payment, and any amounts relevant to the last sentence of the paragraph above, will be made by an independent registered public accounting firm selected by the Company from among the largest four accounting firms in the United States (the “Accounting Firm”). The Accounting Firm selected by the Company will not have an ongoing audit or consulting relationship with the Company at the time it is selected. The Accounting Firm will provide its determination (the “Determination”), together with detailed supporting calculations regarding the amount of any Gross-Up Payment and any other relevant matter, both to the Company and the Executive within ten (10) business days after the effective date of the Change in Control or such earlier time as is requested by the Company or the Executive (if the Executive reasonably believes that any of the Total Payments may be subject to the Excise Tax). Any determination by the Accounting Firm will 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 by the Accounting Firm hereunder, it is possible that the Company should have made Gross-Up Payments (“Underpayment”), or that Gross-Up Payments will have been made by the Company which should not have been made (“Overpayments”). In either such event, the Accounting Firm will determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Underpayment, the amount of any Excise Tax owed with respect theretosuch Underpayment will be promptly paid by the Company to or for the benefit of the Executive. In the case of an Overpayment, the Executive will, at the direction and expense of the Company, take such steps as are reasonably necessary (including the filing of returns and claims for refund), follow reasonable instructions from, and the amount of any gross-up payment shall be made at procedures established by, the Company’s expense , and otherwise reasonably cooperate with the Company to correct such Overpayment. In addition, should the Company decide to contest any assessment by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than of a Code Section 4999 excise tax on one or more items comprising the Excise Tax (if any) determined Total Payments, the Executive will comply with all reasonable actions requested by the accounting firmCompany in connection with such proceedings, the Company but shall promptly augment the grossnot be required to incur any out-up payment to address such higher Excise Tax liabilityof-pocket costs in so doing.

Gross-Up Payment. Payments under Section C.1(a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any Payment would be subject to the Excise Tax, then Executive shall be entitled to receive an additional payment (the "Gross-Up Payment") in an amount such that, ---------------- after payment by Executive of all Taxes (and any interest or penalties imposed with respect to such Taxes), including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. and Section C.2. Notwithstanding the foregoing provisions of this Exhibit Section 6.4(a), if it shall be determined that Executive is entitled to the Gross-Up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then except as provided below, no Gross-Up Payment shall be made without regard to Executive and the amounts payable under this Agreement, other than amounts or benefits provided under Article V of this Agreement or pursuant to any other option or equity grants to Executive (the "Subject Payments"), shall be reduced ---------------- (but not below zero) so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 7.3(a)(ii), unless an alternative method of reduction is elected by Executive, and in any event shall be made in such a manner as to maximize the Value of all Payments actually made to Executive. For purposes of reducing the Payments to the Safe Harbor Amount, only the Subject Payments shall be reduced. If the reduction of the Subject Payments would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, no amounts payable under the Agreement shall be reduced pursuant to this Section 6.4(a), and the Gross-Up Payment shall be made to Executive. The Debtor's or the Reorganized Entity's obligation to make Gross-Up Payments under this Section 6.4 shall not be conditioned upon Executive's Termination of Employment. (b) Subject to the provisions of Section 6.4(c), all determinations required to be made under this Section 6.4, including whether and when a Gross-Up Payment is required, the deductibility amount of such payments Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young, LLP, or such other nationally recognized certified public accounting firm as may be designated by Executive (the "Accounting Firm"). The Accounting Firm --------------- shall provide detailed supporting calculations both to the Debtor or the Reorganized Entity and Executive within fifteen (15) business days of the receipt of notice from Executive that there has been a Payment or such earlier time as is requested by the Debtor or the Reorganized Entity. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, Executive may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Debtor or the Reorganized Entity. Any Gross-Up Payment, as determined pursuant to this Section 6.4, shall be paid by the Debtor or the Reorganized Entity to Executive within five (5) business days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Debtor or the Reorganized Entity and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Debtor or the Reorganized Entity should have been made (the "Underpayment"), ------------ consistent with the calculations required to be made hereunder. In the event the Debtor or the Reorganized Entity exhausts its or their remedies pursuant to Section 6.4(c) and Executive thereafter is required to make a payment of any other payments Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Debtor or benefits the Reorganized Entity to or for the benefit of Executive. (c) The Executive shall notify the Debtor or the Reorganized Entity in writing of any claim by the Internal Revenue Service that, if successful, would be limited require the payment by the Debtor or precluded by Section 280G the Reorganized Entity of the Code Gross-Up Payment. Such notification shall be given as soon as practicable, but no later than ten (“Section 280G”10) business days after Executive is informed in writing of such claim. The Executive shall apprise the Debtor or the Reorganized Entity of the nature of such claim and without regard the date on which such claim is requested to whether be paid. The Executive shall not pay such payments claim prior to the expiration of the thirty (30) calendar day period following the date on which Executive gives such notice to the Debtor or the Reorganized Entity (or such shorter period ending on the date that any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 payment of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) Taxes with respect to such grossclaim is due). If the Debtor or the Reorganized Entity notifies Executive in writing prior to the expiration of such period that the Debtor or the Reorganized Entity desires to contest such claim, Executive shall: (i) give the Debtor or the Reorganized Entity any information reasonably requested by the Debtor or the Reorganized Entity relating to such claim, (ii) take such action in connection with contesting such claim as the Debtor or the Reorganized Entity shall reasonably request in writing from time to time, including accepting legal representation with respect to such claim by an attorney reasonably selected by the Debtor or the Reorganized Entity, (iii) cooperate with the Debtor or the Reorganized Entity in good faith in order effectively to contest such claim, and (iv) permit the Debtor or the Reorganized Entity to participate in any proceedings relating to such claim; provided, however, that the Debtor or the Reorganized Entity shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, and shall indemnify and hold Executive harmless, on an after-up payment equals the tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 6.4(c), the Debtor or the Reorganized Entity shall control all proceedings taken in connection with such contest, and, at its or their sole discretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its or their sole discretion, either direct Executive to pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Debtor or the Reorganized Entity shall determine; provided, however, that, if the Debtor or the Reorganized Entity direct or directs Executive to pay such claim and ▇▇▇ for a refund, the Debtor or the Reorganized Entity shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties) imposed with respect to such advance or with respect to any imputed income in connection with such advance; and provided, further, that any extension of the statute of limitations relating to payment of Taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Debtor's or the Reorganized Entity's control of the contest shall be limited to issues with respect to which the Gross-Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of a Gross-Up Payment or an amount advanced by the Debtor or the Reorganized Entity pursuant to Section 6.4(c), Executive becomes entitled to receive any refund with respect to the Excess Parachute Payments; providedExcise Tax to which such Gross-Up Payment relates or with respect to such claim, that Executive shall (subject to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of Debtor's or the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply Reorganized Entity's complying with the requirements of Section 409A 6.4(c), if applicable) promptly pay to the Debtor or the Reorganized Entity the amount of such refund (together with any interest paid or credited thereon after Taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Debtor or the Reorganized Entity pursuant to Section 6.4(c), a determination is made that Executive shall not be entitled to any refund with respect to such payment so that claim and the payment Debtor or the Reorganized Entity do or does not give rise notify Executive in writing of its or their intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(Bexpiration of thirty (30) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); calendar days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments repaid and benefits include Excess Parachute Payments and, if so, the amount of such paymentsadvance shall offset, to the extent thereof, against the amount of Gross-Up Payment required to be paid. (e) Notwithstanding any Excise Tax owed with respect theretoother provision of this Section 6.4, the Debtor or the Reorganized Entity may, in its or their sole discretion, withhold and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior pay over to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than or any other applicable taxing authority, for the Excise Tax (if any) determined by the accounting firmbenefit of Executive, the Company shall promptly augment the grossall or any portion of any Gross-up payment Up Payment, and Executive hereby consents to address such higher Excise Tax liabilitywithholding.

Gross-Up Payment. Payments under Section C.1. and Section C.2. 4.1 Regardless of this Exhibit shall be made without regard whether Executive becomes entitled to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or under this Agreement, if any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits received or to or for the benefit of be received by Executive (includingwhether pursuant to the terms of this Agreement or any other plan, but not limited to, arrangement or agreement with any System Company) (all such payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within benefits, excluding the meaning of Section 280G (the aggregate of such payments Gross-Up Payment, being hereinafter referred to as the “Excess Parachute "Total Payments”)") will be subject to the Excise Tax, the Company shall promptly pay to Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. 4.2 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) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the Closing, Company's independent auditor (the "Auditor"), such 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, (ii) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for all taxes services actually rendered (including but 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 limited subject to the Excise Tax, and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 4), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. 4.3 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, Executive shall repay to Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in Executive'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 Gross-Up Payment), Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Executive with respect to such gross-up payment equals excess) within five (5) business days following the time that the amount of such excess is finally determined. Executive and Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Excess Parachute Total Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.