Common use of Gross-Up Payment Clause in Contracts

Gross-Up Payment. In the event that the Executive becomes entitled to the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 Cod, and all "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") 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 portion of 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 federal, state or local income taxes) 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, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined.

Gross-Up Payment. In the event that any payment or distribution by the Company to or for the benefit of the Executive becomes entitled to the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any other agreement, plan or arrangement with the Company, any Person whose actions result in additional payments required under this Section 6(e)) (a Change in Control or any Person affiliated with the Company or such Person“Payment”) shall would be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, and all "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 excise tax counsel ("Tax Counsel") selected imposed 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) 4999 of the Code in excess of or any interest or penalties are incurred by the Base AmountExecutive with respect to such excise tax (collectively, or are otherwise not subject to the “Excise Tax”), then the Executive will be entitled to receive an additional payment (iia “Gross-Up Payment”) in an amount such that after payment by the amount Executive of the Total Benefits which shall be treated as subject all taxes (including any income taxes and interest or penalties imposed with respect to such taxes) and 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 imposed on 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 retains an 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 equal to the Excise Tax imposed on the Payments. All determinations required to be made under this Section 6(e), including whether and when a Gross-Up Payment is required and the amount of such reduction Gross-Up Payment, will be made by the independent accounting firm of the Company immediately prior to the Executive’s termination of employment (plus the “Accounting Firm”). All fees and expenses of the Accounting Firm will be borne solely by the Company, and any determination by the Accounting Firm will be binding upon the Company and the Executive. Any Gross-Up Payment, as determined pursuant to this Section 6(e), will be paid by the Company to the Executive within ten days of the receipt of the Accounting Firm’s determination, but in no event later than the end of the year next following the year in which the Executive pays the Excise Tax. (i) If the Accounting Firm determines that portion no Excise Tax is payable by the Executive, it shall so indicate to the Executive in writing. (ii) In the event there is an under-payment of the Gross-Up Payment attributable due to the Excise Tax, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on uncertainty in the portion application of Section 4999 of 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 federal, state or local income taxes) 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 Code at the time of the termination initial determination by the Accounting Firm and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will determine the amount of any such under-payment that has occurred and such amount will be promptly paid by the Company to or for the benefit of the Executive's employment (including by reason of any payment , but in no event shall it be paid later than the existence or amount of which cannot be determined at the time end of the Gross-Up Payment), year next following the Company shall make an additional Gross-Up Payment, determined as previously described, to year in which the Executive in respect to such excess (plus any interest, penalties or additions payable by initially paid the Executive with respect to such excess) at the time that the amount of such excess is finally determinedExcise Tax.

Gross-Up Payment. In the event that the The term “Gross Up Payment” as used in this Employment Agreement shall mean a payment to or on behalf of Executive becomes entitled which shall be sufficient to the Severance Benefits or pay (1) 100% of any other benefits or payments under excise tax described in this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"§4.2(g), and in the event that any (2) 100% of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Tax tax and FICA social security and Medicare withholding taxes upon other employment tax on the payment provided for made to pay such excise tax as well as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by this Section, the Internal Revenue Service on Executive which are related to the timely payment of such excise tax (unless such interest or penalties are attributable to Executive’s willful misconduct or gross negligence with respect to such timely payment). A Gross Up Payment shall be equal to made by the Total Benefits. For purposes of determining whether Company promptly after either the Company or the Company’s independent accountants determine that any of the Total Benefits will be subject to the Excise Tax payments and the amount of such Excise Tax, (i) benefits called for under this Employment Agreement together with any other payments or and benefits received or made available to be received Executive 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 Company and any other agreement, plan or arrangement with the Company, any Person whose actions person will result in a Change Executive’s being subject to an excise tax under § 4999 of the Internal Revenue Code of 1986, as amended (which shall be referred to in Control or any Person affiliated with this § 4.2(g) as the Company “Code”) or such Person) shall be treated an excise tax is assessed against Executive as "parachute payments" within the meaning a result of Section 280G(b)(2) of the Cod, any such payments and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject other benefits if Executive takes such action (other than waiving Executive’s right 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 any 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 Amountpayments or benefits which Executive has expressly agreed to waive under this § 4.2(g)) as the Company reasonably requests under the circumstances to mitigate or challenge such excise tax; provided, however, if the Company or are otherwise the Company’s independent accountants make the determination described in this § 4.2(g) and, further, determine that Executive will not be subject to any such excise tax if Executive waives Executive’s right to receive a part of such payments or benefits and such part does not exceed $25,000, Executive shall irrevocably waive Executive’s right to receive such part if an independent accountant or lawyer retained by Executive and paid by the Excise Tax, (ii) Company agrees with the amount of determination made by the Total Benefits which shall be treated as subject Company or the Company’s independent accountants with respect 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 effect of such reduction in Excise Tax is finally determined, the portion payments or benefits. Any determinations under this §4.2(g) shall be made in accordance with § 280G of the Gross-Up Payment attributable Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law and, if the Company reasonably requests that Executive take action to mitigate or challenge, or to mitigate and challenge, any such reduction tax or assessment (plus that portion other than waiving Executive’s right to any payments or benefits in excess of the Gross-Up Payment attributable payments or benefits which Executive has expressly agreed to the Excise Tax, federal, state waive under this §4.2(g)) and local income taxes and FICA and Medicare withholding taxes imposed on the portion of the Gross-Up Payment being repaid by the Executive to the extent that complies with such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) 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)request, the Company shall make an additional Gross-Up Payment, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the provide Executive with respect to such excess) at information and such expert advice and assistance from the time that the amount of Company’s independent accountants, lawyers and other advisors as Executive may reasonably request and shall pay for all expenses incurred in effecting such excess is finally determinedcompliance and any related fines, penalties, interest and other assessments.

Gross-Up Payment. In the event that the The term “Gross Up Payment” as used in this Employment Agreement shall mean a payment to or on behalf of Executive becomes entitled which shall be sufficient to the Severance Benefits or pay (1) 100% of any other benefits or payments under excise tax described in this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"§ 4.2(g), and in the event that any (2) 100% of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Tax tax and FICA social security and Medicare withholding taxes upon other employment tax on the payment provided for made to pay such excise tax as well as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by this Section, the Internal Revenue Service on Executive which are related to the timely payment of such excise tax (unless such interest or penalties are attributable to Executive’s willful misconduct or gross negligence with respect to such timely payment). A Gross Up Payment shall be equal to the Total Benefits. For purposes of determining whether made by INTCX promptly after either INTCX or INTCX’s independent accountants determine that any of the Total Benefits will be subject to the Excise Tax payments and the amount of such Excise Tax, (i) benefits called for under this Employment Agreement together with any other payments or and benefits received or made available to be received Executive 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 INTCX and any other agreement, plan or arrangement with the Company, any Person whose actions person will result in a Change Executive’s being subject to an excise tax under § 4999 of the Internal Revenue Code of 1986, as amended (which shall be referred to in Control or any Person affiliated with this § 4.2(g) as the Company “Code”) or such Person) shall be treated an excise tax is assessed against Executive as "parachute payments" within the meaning a result of Section 280G(b)(2) of the Cod, any such payments and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject other benefits if Executive takes such action (other than waiving Executive’s right 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 any 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 Amountpayments or benefits which Executive has expressly agreed to waive under this § 4.2(g)) as INTCX reasonably requests under the circumstances to mitigate or challenge such excise tax; provided, however, if INTCX or are otherwise INTCX’s independent accountants make the determination described in this § 4.2(g) and, further, determine that Executive will not be subject to any such excise tax if Executive waives Executive’s right to receive a part of such payments or benefits and such part does not exceed $25,000, Executive shall irrevocably waive Executive’s right to receive such part if an independent accountant or lawyer retained by Executive and paid by INTCX agrees with the Excise Tax, (ii) the amount of the Total Benefits which shall be treated as subject determination made by INTCX or INTCX’s independent accountants with respect 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 effect of such reduction in Excise Tax is finally determined, the portion payments or benefits. Any determinations under this § 4.2(g) shall be made in accordance with § 280G of the Gross-Up Payment attributable Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law and, if INTCX reasonably requests that Executive take action to mitigate or challenge, or to mitigate and challenge, any such reduction tax or assessment (plus that portion other than waiving Executive’s right to any payments or benefits in excess of the Gross-Up Payment attributable payments or benefits which Executive has expressly agreed to the Excise Taxwaive under this § 4.2(g)) and Executive complies with such request, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the portion of 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 federal, state or local income taxes) 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 INTCX shall make an additional Gross-Up Payment, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the provide Executive with respect to such excess) at the time that the amount of information and such excess is finally determinedexpert advice and assistance from INTCX’s independent accountants, lawyers and other advisors as Executive may reasonably request and shall pay for all expenses incurred in effecting such compliance and any related fines, penalties, interest and other assessments.

Gross-Up Payment. In the event that the The term “Gross Up Payment” as used in this Employment Agreement shall mean a payment to or on behalf of Executive becomes entitled which shall be sufficient to the Severance Benefits or pay (1) 100% of any other benefits or payments under excise tax described in this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"§4.2(g), and in the event that any (2) 100% of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Tax tax and FICA social security and Medicare withholding taxes upon other employment tax on the payment provided for made to pay such excise tax as well as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by this Section, the Internal Revenue Service on Executive which are related to the timely payment of such excise tax (unless such interest or penalties are attributable to Executive’s willful misconduct or gross negligence with respect to such timely payment). A Gross Up Payment shall be equal to made by ICE promptly (but no later than by the Total Benefits. For purposes end of determining whether any of Executive’s taxable year next following Executive’s taxable year in which the Total Benefits will be subject to the Excise Tax and the amount payment of such Excise Tax, (iexcise tax is remitted) after either ICE or ICE’s independent accountants or attorneys determine that any payments and benefits called for under this Employment Agreement together with any other payments or and benefits received or made available to be received Executive 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 ICE and any other agreement, plan or arrangement with the Company, any Person whose actions person will result in a Change in Control or any Person affiliated with Executive’s being subject to an excise tax under § 4999 of the Company Internal Revenue Code of 1986, as amended (the “Code”) or such Person) shall be treated an excise tax is assessed against Executive as "parachute payments" within the meaning a result of Section 280G(b)(2) of the Cod, any such payments and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject other benefits if Executive takes such action (other than waiving Executive’s right 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 any 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 Amountpayments or benefits which Executive has expressly agreed to waive under this § 4.2(g)) as ICE reasonably requests under the circumstances to mitigate or challenge such excise tax; provided, however, if ICE or are otherwise ICE’s independent accountants or attorneys make the determination described in this § 4.2(g) and, further, determine that Executive will not be subject to any such excise tax if Executive waives Executive’s right to receive a part of such payments or benefits and such part does not exceed $25,000, Executive shall irrevocably waive Executive’s right to receive such part if an independent accountant or lawyer retained by Executive and paid by ICE agrees with the Excise Tax, (ii) the amount of the Total Benefits which shall be treated as subject determination made by ICE or ICE’s independent accountants or attorneys with respect 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 effect of such reduction in Excise Tax is finally determined, the portion payments or benefits. Any determinations under this §4.2(g) shall be made in accordance with § 280G of the Gross-Up Payment attributable Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law and, if ICE reasonably requests that Executive take action to mitigate or challenge, or to mitigate and challenge, any such reduction tax or assessment (plus that portion other than waiving Executive’s right to any payments or benefits in excess of the Gross-Up Payment attributable payments or benefits which Executive has expressly agreed to the Excise Taxwaive under this §4.2(g)) and Executive complies with such request, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the portion of 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 federal, state or local income taxes) 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 ICE shall make an additional Gross-Up Payment, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the provide Executive with respect to such excess) at the time that the amount of information and such excess is finally determinedexpert advice and assistance from ICE’s independent accountants, lawyers and other advisors as Executive may reasonably request and shall pay for all expenses incurred in effecting such compliance and any related fines, penalties, interest and other assessments.

Gross-Up Payment. (a) In the event that the Executive becomes entitled to the any Severance Benefits Payments paid or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay payable to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 or 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 his benefit pursuant to the terms of this Agreement or any other agreement, plan or arrangement otherwise in connection with the Company, any Person whose actions result in a Change in Control (“Total Payments”) would be subject to any Excise Tax, then the Executive will be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after the Executive’s payment of all taxes (including any interest, penalties, additional tax, or similar items imposed with respect to the Gross-Up Payment and the Excise Tax), including any Person affiliated with Excise Tax upon the Company or such Person) shall be treated as "parachute payments" within Gross-Up Payment, the meaning of Section 280G(b)(2) Executive retains an amount of the Cod, and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject Gross-Up Payment equal to the Excise Tax, unless in Tax imposed upon the opinion Total Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of tax counsel ("Tax Counsel") that Gross-Up Payment will be made at the Company’s expense by an Accounting Firm selected by the Executive and reasonably acceptable to the Company's independent auditors . The Accounting Firm will provide its determination, together with detailed supporting calculations and documentation, to the Company and the Executive within 10 business days after the Date of Termination, or such other time as requested by the Company and the Executive. If the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Payments, it will furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to the Payments. Within 10 business days after the Accounting Firm delivers its determination to the Executive, such other payments or benefits (in whole or in part) do not constitute parachute paymentsthe Executive will have the right to dispute the determination. The Gross-Up Payment, 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 Amountif any, 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 Accounting Firm in accordance with the principles preceding provisions of sections 280G(d)(3) and (4) this Section, will be paid by the Company to the Executive within 5 business days of the Codereceipt of the Accounting Firm’s determination. The existence of a dispute will not in any way affect the Executive’s right to receive the Gross-Up Payment in accordance with the determination. If there is no dispute, the determination will be final, binding, and conclusive upon the Company and the Executive. If there is a dispute, then the Company and the Executive will together select a second Accounting Firm, which will review the determination and the Executive’s basis for the dispute and then render its own determination, which will be final, binding, and conclusive on the Company and the Executive. The Company will bear all costs associated with that determination, unless the determination is not greater than the initial determination, in which case all such costs will be borne by the Executive. (c) For purposes of determining the amount of the Gross-Up Payment, the Executive shall will be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and applicable state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's ’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could that would be obtained from deduction of such those state and local taxes taxes. (calculated by assuming that any reduction under Section 68 of d) Notwithstanding anything contained in this Agreement to the Code contrary, in the event that, according to the Accounting Firm’s determination, an Excise Tax will be imposed on the Total Payments, the Company will pay to the applicable government taxing authorities as Excise Tax withholding the amount of itemized deductions allowable the Excise Tax that the Company has actually withheld from the Total Payments in accordance with applicable law. (e) Notwithstanding the preceding provisions of this Section 3.03, the Company will not have any obligation to make the Gross-Up Payment unless the value of the Total Payments exceeds 110% of the maximum amount of parachute payments that could be paid to the Executive applies first to reduce without any imposition of golden parachute excise taxes under Code sections 280G and 4999 (the amount of such state and local income taxes that would otherwise be deductible by the Executive“110% Amount”). In the event the value of the Total Payments does not exceed the 110% Amount, the value of the Total Payments will be reduced to the extent necessary so that, within the meaning of Code section 280G(b)(2)(A)(ii), the aggregate present value of the payments in the nature of compensation to (or for the benefit of) the Executive that are contingent on a Change in Control (with a Change in Control for this purpose being defined in terms of a “change” described in Code section 280G(b)(2)(A)(i) or (ii)), do not exceed 2.999 multiplied by the Excise Tax is subsequently determined Base Amount. For this purpose, cash Severance Payments will be reduced first (if necessary, to zero), and all other, non-cash Severance Payments will be less than reduced next (if necessary, to zero). For purposes of the amount limitation described in the preceding sentence, the following will not be 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 account: (1) any portion of the Gross-Up Payment attributable Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to such reduction the Date of Termination, and (plus that 2) any portion of the Gross-Up Payment attributable to Total Payments that, in the Excise Tax, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the portion opinion of the GrossAccounting Firm, does not constitute a “parachute payment” within the meaning of Code section 280G(b)(2). (f) For purposes of this Section 3.03, the value of any non-Up Payment being repaid cash benefit or any deferred payment or benefit included in the Total Payments will be determined by the Executive to Accounting Firm in accordance with the extent that such repayment results in a reduction in Excise Taxprinciples of Code sections 280G(d)(3) and (4). (g) Notwithstanding the foregoing, FICA and Medicare withholding taxes and/or federal, state or local income taxes) plus interest on the amount of such repayment at the rate provided in any payment under this Section 1274(b)(2)(B) 3.03 shall be made by March 15 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 year following the Executive's employment (including by reason ’s Date 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, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedTermination.

Gross-Up Payment. In the event that the The term “Gross Up Payment” as used in this Employment Agreement shall mean a payment to or on behalf of Executive becomes entitled which shall be sufficient to the Severance Benefits or pay (1) 100% of any other benefits or payments under excise tax described in this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"§ 4.2(g), and in the event that any (2) 100% of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Tax tax and FICA social security and Medicare withholding taxes upon other employment tax on the payment provided for made to pay such excise tax as well as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by this Section, the Internal Revenue Service on Executive which are related to the timely payment of such excise tax (unless such interest or penalties are attributable to Executive’s willful misconduct or gross negligence with respect to such timely payment). A Gross Up Payment shall be equal to the Total Benefits. For purposes of determining whether made by INTCX promptly after either INTCX or INTCX’s independent accountants determine that any of the Total Benefits will be subject to the Excise Tax payments and the amount of such Excise Tax, (i) benefits called for under this Employment Agreement together with any other payments or and benefits received or made available to be received Executive 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 INTCX and any other agreement, plan or arrangement with the Company, any Person whose actions person will result in a Change Executive’s being subject to an excise tax under § 4999 of the Internal Revenue Code of 1986, as amended (which shall be referred to in Control or any Person affiliated with this § 4.2(g) as the Company “Code”) or such Person) shall be treated an excise tax is assessed against Executive as "parachute payments" within the meaning a result of Section 280G(b)(2) of the Cod, any such payments and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject other benefits if Executive takes such action (other than waiving Executive’s right 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 any 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 Amountpayments or benefits which Executive has expressly agreed to waive under this § 4.2(g)) as INTCX reasonably requests under the circumstances to mitigate or challenge such excise tax; provided, however, if INTCX or are otherwise INTCX’s independent accountants make the determination described in this § 4.2(g) and, further, determine that Executive will not be subject to any such excise tax if Executive waives Executive’s right to receive a part of such payments or benefits and such part does not exceed $15,000, Executive shall irrevocably waive Executive’s right to receive such part if an independent accountant or lawyer retained by Executive and paid by INTCX agrees with the Excise Tax, (ii) the amount of the Total Benefits which shall be treated as subject determination made by INTCX or INTCX’s independent accountants with respect 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 effect of such reduction in Excise Tax is finally determined, the portion payments or benefits. Any determinations under this § 4.2(g) shall be made in accordance with § 280G of the Gross-Up Payment attributable Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law and, if INTCX reasonably requests that Executive take action to mitigate or challenge, or to mitigate and challenge, any such reduction tax or assessment (plus that portion other than waiving Executive’s right to any payments or benefits in excess of the Gross-Up Payment attributable payments or benefits which Executive has expressly agreed to the Excise Taxwaive under this § 4.2(g)) and Executive complies with such request, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the portion of 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 federal, state or local income taxes) 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 INTCX shall make an additional Gross-Up Payment, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the provide Executive with respect to such excess) at the time that the amount of information and such excess is finally determinedexpert advice and assistance from INTCX’s independent accountants, lawyers and other advisors as Executive may reasonably request and shall pay for all expenses incurred in effecting such compliance and any related fines, penalties, interest and other assessments.

Gross-Up Payment. In the event that the Executive becomes entitled to the Severance Benefits If any payment or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 benefit received by the Executive in connection with a Change in Control or the Executive's termination of employment (whether pursuant to the terms of under 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 agreement with the Company or such Person(a “Benefit”) shall be treated as "parachute payments" within the meaning of is subject to tax under Section 280G(b)(2) 4999 of the CodInternal Revenue Code of 1986, and all "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") 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 paymentsamended, or such excess parachute payments (in whole any interest 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 penalties 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 portion of 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 federal, state or local income taxes) 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, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable incurred by the Executive with respect to such excesstax (collectively, “Excise Tax”), the Company will pay the Executive an amount (“Gross Up Payment”) at that covers: all Excise Taxes payable by Executive because of any such Benefit and all income and employment taxes and Excise Taxes on the time Gross Up Payment. It is the Company’s intent that any payment under this Section 3.11 shall place the Executive in the same position that he would have been in had the Benefit not been subject to the Excise Tax. Any Gross Up Payment shall be made no later than the date the Excise Tax is payable by the Executive or the date it is withheld as provided below. The Company shall determine whether or not any Benefit is subject to the Excise Tax and withhold the amount of the Excise Tax from any Benefit or other remuneration payable to the Executive. Any such excess determination shall be made in good faith and after consultation with the Company’s independent certified public accountants or outside tax counsel. The Company shall also have the right, on behalf of the Executive, at its sole cost and expense, to contest any claim by the Internal Revenue Service (“Service”) that any Benefit is finally determinedsubject to the Excise Tax or file and pursue a claim for refund of any Excise Tax previously paid. The Executive shall cooperate with the Company in any such proceeding and provide the Company with any notifications received by the Executive from the Service. If the Executive receives any refund of Excise Tax for which a Gross Up Payment has been made, the Executive shall pay such refund to the Company. Provided, however, that the Gross-Up Payment shall be made only to the extent that the total value of Benefits exceeds by 10 percent or more the dollar amount that is 3 times the Executive’s “base amount” (as defined in Section 280G of the Code). If the total value of Benefits exceeds by less than 10 percent the dollar amount that is 3 times the Executive’s “base amount,” then no Gross-Up Payment shall be made and Benefits shall be capped at the amount that is $1 less than 3 times the Executive’s “base amount.”

Gross-Up Payment. (a) In the event that the any amount or benefits made or provided to Executive becomes entitled to the Severance Benefits or any above and under all other benefits or payments under this Agreement (other than pursuant to this Section) by reason plans and programs of the accelerated vesting of stock options thereunder Company (together, the "Total BenefitsCovered Payments")) is determined to constitute a Parachute Payment, and as such term is defined in the event that any Section 280G(b)(2) of the Total Benefits will be subject to the Excise TaxInternal Revenue Code, the Company shall pay to Executive, prior to the Executive time any Internal Revenue Code Section 4999 excise tax ("Excise Tax") is payable with respect to any such Covered Payment, an additional amount which is equal to the Excise Tax on the Covered Payment (the "Initial Gross-Up"), plus the amount of income tax and Excise Tax payable by Executive with respect to the Initial Gross-Up Payment(the "Second Gross-Up"), the amount of income tax and Excise Tax payable by Executive with respect to the Second Gross-Up (the "Third Gross-Up"), the amount of income tax and Excise Tax payable by Executive with respect to the Third Gross-Up (the "Fourth Gross-Up"), and the amount of income tax and Excise Tax payable by Executive with respect to the Fourth Gross-Up. (b) The determination of whether the Covered Payment constitutes a Parachute Payment and, if so, the amount to be paid to Executive and the time of payment pursuant to this paragraph 20 shall be made by an independent auditor (the "Auditor") jointly selected by the Company and Executive and paid by the Company. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Company or any of its Affiliates. If Executive and the Company cannot agree on the firm to serve as the Auditor, then Executive and the Company shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor. (c) In the event that upon any audit by the Internal Revenue Service, or by a state or local taxing authority, of the Covered Payment or the Gross-Up payments, a change is finally determined to be required in the amount of taxes paid by the Executive, appropriate adjustments will be made under this Agreement such that the net amount retained by which is payable to Executive after taking into account the Executive, after deduction provisions 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 Cod, and all "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") 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) section 4999 of the Code in excess will reflect the intent of the Base Amountparties as expressed in subparagraph (a) above, 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 manner 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 portion of 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 federal, state or local income taxes) 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, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedAuditor.

Gross-Up Payment. In the event that (i) the Executive Employee becomes entitled to the Severance Benefits or any other benefits or payments provided under Section 10.2 of this Agreement (other than pursuant to this Sectionthe "Change in Control Payments") by reason and any of the accelerated vesting of stock options thereunder Change in Control Payments will be subject to the tax (together, the "Total BenefitsExcise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), and in or any successor provision, or (ii) any payments or benefits received or to be received by the event that Employee pursuant to the terms of any of other plan, arrangement or agreement (the Total Benefits "Benefit Payments") will be subject to the Excise Tax, the Company shall pay to the Executive Employee an additional amount (the "Gross-Up Payment") such that the net amount retained by the ExecutiveEmployee, after deduction of any Excise Tax on the Total Benefits Change in Control Payments and the Benefit Payments, and any federal, state and local income tax, tax and Excise Tax and FICA and Medicare withholding taxes upon the payment provided for by this SectionSection 10.3, shall be equal to the Total BenefitsChange in Control Payments and the Benefit Payments, provided, however, that in determining the amount of the Gross-Up Payment, any Excise Tax on the Change in Control Payments and the Benefit Payments shall be determined using a rate no higher than 20%. For purposes of determining whether any of the Total Benefits Change in Control Payments or the Benefit 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 Employee in connection with a Change change in Control control of the Company or the ExecutiveEmployee's termination of employment (whether pursuant to the terms of this Agreement agreement or any other agreementplan, plan arrangement or arrangement agreement with the Company, any Person person whose actions result in a Change change in Control control or any Person person affiliated with the Company or such Personpersons) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2280G(b) (2) of the CodCode, and all "excess parachute payments" within the meaning the of Section 280G(b)(1280G(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, Employee 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)(4280G(b) (4) of the Code in excess of the Base Amount, or are otherwise not subject to the Excise TaxCode, (ii) the amount of the Total Benefits which Change in Control Payments and the Benefit Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Benefits reduced by Change in Control Payments and the amount of such Total Benefits that in the opinion of Tax Counsel are not parachute payments, Benefit Payments or (B) the amount of excess parachute payments within the meaning of Section Sections 280G(b)(1) and (4) (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 Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate rates of taxation in the state and locality of the ExecutiveEmployee's residence on the Date date of Terminationtermination, net of the maximum 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)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 the ExecutiveEmployee's employment, the Executive Employee shall repay to the Company, Company at the that time that the amount of such reduction in Excise Tax is finally determined, 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 portion of 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 federal, state or local income taxes) 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 ExecutiveEmployee'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 Grossgross-Up Payment, determined as previously described, up payment to the Executive Employee in respect to of such excess (plus any interest, penalties or additions interest payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined.

Gross-Up Payment. In the event that the Executive becomes entitled SECTION 8.01. Anything in this Agreement to the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (togethercontrary notwithstanding and except as set forth below, the "Total Benefits"), and in the event it shall be determined that any of the Total Benefits will Payment would be subject to the Excise Tax, the Company shall pay to then the Executive shall be entitled to receive an additional amount payment (the "“Gross-Up Payment"”) in an amount such that the net amount retained by the Executivethat, after 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 of all taxes (and any interest or penalties imposed with a Change in Control or the Executive's termination of employment (whether pursuant respect to the terms of this Agreement or any other agreementsuch taxes), plan or arrangement with the Companyincluding, without limitation, any Person whose actions result in a Change in Control or income and employment taxes (and any Person affiliated interest and penalties imposed with the Company or such Personrespect thereto) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, and all "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") 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 imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation to make Gross-Up Payments under this Article VIII shall not be conditioned upon the Executive’s termination of employment. SECTION 8.02. Subject to the provisions of Section 8.03, all determinations required to be made under this Article VIII, including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be deemed made by the Company’s auditor in effect immediately prior to a Change of Control or such other nationally recognized certified public accounting firm as may be designated by the Executive (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment or such earlier time as is requested by the Company. The Accounting Firm shall not determine that no Excise Tax is payable by the Executive unless it delivers to the Executive a written opinion that failure to report the Excise Tax on the Executive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. 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 8.02, shall be paid by the Company to the Executive within 5 days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be final and binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code, 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 8.03 and the 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 the Executive. SECTION 8.03. The Executive shall notify the Company in writing of any claims 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 not later than 30 days after the Executive actually receives notice 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; provided, however, that the failure of the Executive to notify the Company of such claim (or to provide any required information with respect thereto) shall not affect any rights granted to the Executive under this Article VIII except to the extent that the Company is materially prejudiced in the defense of such claim as a direct result of such failure. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which the 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 the Executive in writing prior to the expiration of such period that the Company desires to contest such claim, the Executive shall: (a) give the Company any information reasonably requested by the Company relating to such claim; (b) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company and reasonably acceptable to the Executive; (c) cooperate with the Company in good faith in order to effectively contest such claim; and (d) 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 the Executive harmless, on an after-tax basis, for any Excise Tax or income or employment 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 8.03, the Company shall control all proceedings taken in connection with such contest, and, at its sole discretion, may pursue or forego 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 the Executive to pay federal the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that, if the Company directs the Executive to pay such claim and ▇▇▇ for a refund, the Company shall advance the amount of such payment to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax 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 at for the highest marginal rate taxable year of federal income taxation in the calendar year in 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 is would be payable hereunder, and the Executive shall be entitled to be made and state and local income taxes at settle or contest, as the highest marginal rate case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. SECTION 8.04. If, after the receipt by the Executive of taxation in an amount advanced by the state and locality of Company pursuant to Section 8.03, the Executive's residence on Executive becomes entitled to receive any refund with respect to such claim, the Date of Termination, net of the reduction in federal income taxes which could be obtained from deduction of such state and local taxes Executive shall (calculated by assuming that any reduction under Section 68 of the Code in the amount of itemized deductions allowable subject to the Executive applies first Company’s complying with the requirements of Section 8.03) promptly pay to reduce the Company the amount of such state and local income refund (together with any interest paid or credited thereon after taxes that would otherwise be deductible applicable thereto). If, after the receipt by the Executive). In Executive of an amount advanced by the event Company pursuant to Section 8.03, a determination is made 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 not be entitled to any refund with respect to such claim, and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the Companyexpiration of 30 days after such determination, at the time that then such advance shall not be required to be repaid and the amount of such reduction in Excise Tax is finally determinedadvance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. SECTION 8.05. Notwithstanding any other provision of this Article VIII, the Company may, in its sole discretion, withhold and pay over to the Internal Revenue Service or any other applicable taxing authority, for the benefit of the Executive, all or any portion of the Gross-Up Payment attributable Payment, and the Executive hereby consents 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 portion of 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 federal, state or local income taxes) 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, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedwithholding.

Gross-Up Payment. In the event that the Executive becomes entitled to the Severance Benefits or any other benefits or payments under The term “Gross Up Payment” as used in this Agreement shall mean a payment to or on behalf of Employee which shall be sufficient to pay (other than pursuant to this Section1) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction 100% of any Excise Tax on the Total Benefits and excise tax described in this Section 11, (2) 100% of any federal, state and local income tax, Excise Tax tax and FICA social security and Medicare withholding taxes upon other employment tax on the payment provided for made to pay such excise tax as well as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by this Section, the Internal Revenue Service on Employee which are related to the timely payment of such excise tax (unless such interest or penalties are attributable to Employee’s willful misconduct or gross negligence with respect to such timely payment). A Gross Up Payment shall be equal made by the Company in a lump sum at the Company’s option either directly to the Total Benefits. For purposes of determining whether United State Treasury or to Employee after either the Company or the Company’s independent accountants determine that any of the Total Benefits will be subject to the Excise Tax payments and the amount of such Excise Tax, (i) benefits called for under this Agreement together with any other payments or and benefits received or made available to be received Employee 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 Company and any other agreement, plan or arrangement with the Company, any Person whose actions person will result in a Change in Control or any Person affiliated with Employee being subject to an excise tax under § 4999 of the Company Code or such Person) shall be treated an excise tax is assessed against Employee as "parachute payments" within the meaning a result of Section 280G(b)(2) of the Cod, any such payments and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject other benefits if Employee takes such action (other than waiving Employee’s right 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 any 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 Amountpayments or benefits which Employee has expressly agreed to waive under this Section 11) as the Company reasonably requests under the circumstances to mitigate or challenge such excise tax; provided, however, if the Company or are otherwise the Company’s independent accountants make the determination described in this Section 11 and, further, determine that Employee will not be subject to any such excise tax if Employee waives Employee’s right to receive a part of such payments or benefits and such part does not exceed $10,000, Employee shall irrevocably waive Employee’s right to receive such part if an independent accountant or lawyer retained by Employee and paid by the Excise Tax, (ii) Company agrees with the amount of determination made by the Total Benefits which shall be treated as subject Company or the Company’s independent accountants with respect 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 effect of such reduction in Excise Tax is finally determined, the portion payments or benefits. Any determinations under this Section 11 shall be made in accordance with § 280G of the Gross-Up Payment attributable Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law and, if the Company reasonably requests that Employee take action to mitigate or challenge, or to mitigate and challenge, any such reduction tax or assessment (plus that portion other than waiving Employee’s right to any payments or benefits in excess of the Gross-Up Payment attributable payments or benefits which Employee has expressly agreed to the Excise Tax, federal, state waive under this Section 11 and local income taxes and FICA and Medicare withholding taxes imposed on the portion of the Gross-Up Payment being repaid by the Executive to the extent that Employee complies with such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) 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)request, the Company shall make an additional Gross-Up Paymentprovide Employee with such information and such expert advice and assistance from the Company’s independent accountants, determined lawyers and other advisors as previously describedEmployee may reasonably request and shall pay for all expenses incurred in effecting such compliance and any related fines, to the Executive in respect to such excess (plus any interestpenalties, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedinterest and other assessments.

Gross-Up Payment. In the event that If the Executive becomes entitled to the Severance Benefits or any other payments and benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 following a Change in Control under Section 6(f) or the vesting of the Options accelerate following a Change in Control as provided in the Stock Option Agreements, the Company will cause its independent auditors promptly to review, at the Company’s sole expense, the applicability of Code Section 4999 to any payment or distribution of any type by the Company to or for the Executive's termination of employment (’s benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, the Stock Option Agreements or otherwise (the “Total Payments”). If the auditor determines that the Total Payments result in an excise tax imposed by Code Section 4999 or any other agreementcomparable state or local law, plan or arrangement with the Company, any Person whose actions result in a Change in Control or any Person affiliated 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 “Excise Tax”), the Company or such Personwill make an additional cash payment (a “Gross-Up Payment”) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject to the Executive within 10 days after such determination equal to an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any 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 imposed upon 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 would retain an 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 equal to such reduction (plus that portion the Excise Tax imposed upon the Total Payments. For purposes of the foregoing determination, the Executive’s tax rate will be deemed to be the highest statutory marginal state and federal tax rate (on a combined basis) then in effect. If no determination by the Company’s auditors is made prior to the time the Executive is required to file a tax return reflecting the Total Payments, the Executive will be entitled to receive from the Company a Gross-Up Payment attributable calculated on the basis of the Excise Tax the Executive reported in such tax return, within 10 days after the later of the date on which the Executive files such tax return or the date on which the Executive provides a copy thereof to the Company. In all events, if any tax authority determines that a greater Excise TaxTax should be imposed upon the Total Payments than is determined by the Company’s independent auditors or reflected in the Executive’s tax return pursuant to this Section 6(g), federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the portion of Executive will be entitled to receive from the Company the full Gross-Up Payment being repaid by calculated on the Executive to the extent that such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) plus interest on basis of 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 be payable by such tax authority within 10 days after 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), Executive notifies the Company shall make an additional Gross-Up Payment, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determineddetermination.

Gross-Up Payment. (a) In the event that the Executive becomes entitled to the any Severance Benefits Payments paid or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay payable to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 or 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 his benefit pursuant to the terms of this Agreement or any other agreement, plan or arrangement otherwise in connection with the Company, any Person whose actions result in a Change in Control (“ Total Payments”) would be subject to any Excise Tax, then the Executive will be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after the Executive’s payment of all taxes (including any interest, penalties, additional tax, or similar items imposed with respect to the Gross-Up Payment and the Excise Tax), including any Person affiliated with Excise Tax upon the Company or such Person) shall be treated as "parachute payments" within Gross-Up Payment, the meaning of Section 280G(b)(2) Executive retains an amount of the Cod, and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject Gross-Up Payment equal to the Excise Tax, unless in Tax imposed upon the opinion Total Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of tax counsel ("Tax Counsel") that Gross-Up Payment will be made at the Company’s expense by an Accounting Firm selected by the Executive and reasonably acceptable to the Company's independent auditors . The Accounting Firm will provide its determination, together with detailed supporting calculations and documentation, to the Company and the Executive within 10 business days after the Date of Termination, or such other time as requested by the Company and the Executive. If the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Payments, it will furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to the Payments. Within 10 business days after the Accounting Firm delivers its determination to the Executive, such other payments or benefits (the Executive will have the right to dispute the determination. The Gross-Up Payment, if any, as determined by the Accounting Firm in whole or in part) do not constitute parachute paymentsaccordance with the preceding provisions of this Section, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered will be paid by the Company to the Executive within the meaning of Section 280G(b)(4) 5 business days of the Code in excess receipt of the Base AmountAccounting Firm’s determination. The existence of a dispute will not in any way affect the Executive’s right to receive the Gross-Up Payment in accordance with the determination. If there is no dispute, or are otherwise the determination will be final, binding, and conclusive upon the Company and the Executive. If there is a dispute, then the Company and the Executive will together select a second Accounting Firm, which will review the determination and the Executive’s basis for the dispute and then render its own determination, which will be final, binding, and conclusive on the Company and the Executive. The Company will bear all costs associated with that determination, unless the determination is not subject to greater than the Excise Taxinitial determination, (ii) the amount of the Total Benefits in which shall case all such costs will be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Benefits reduced borne by the amount of such Total Benefits that in the opinion of Tax Counsel are not parachute payments, or Executive. (Bc) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i), above), and (iii) the The value of any non-cash benefits or any deferred payment or benefit shall paid or payable to the Executive will be determined by the Company's independent auditors in accordance with the principles of sections Code section 280G(d)(3) and (4) of the Code). For purposes of determining the amount of the Gross-Up Payment, the Executive shall will be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and applicable state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's ’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could that would be obtained from deduction of such those state and local taxes taxes. (calculated by assuming that any reduction under Section 68 of d) Notwithstanding anything contained in this Agreement to the Code contrary, in the event that, according to the Accounting Firm’s determination, an Excise Tax will be imposed on the Total Payments, the Company will pay to the applicable government taxing authorities as Excise Tax withholding 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 that the amount taken into account hereunder at Company has actually withheld from the time Total Payments in accordance with applicable law. (e) Notwithstanding the preceding provisions of termination of the Executive's employmentthis Section 3.03, the Executive shall repay Company will not have any obligation to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of make the Gross-Up Payment attributable unless the value of the Total Payments exceeds 110% of the maximum amount of parachute payments that could be paid to such reduction the Executive without any imposition of golden parachute excise taxes under Code sections 280G and 4999 (plus the “110% Amount”). In that case, the value of the Total Payments will be reduced to the extent necessary so that, within the meaning of Code section 280G(b)(2)(A)(ii), the aggregate present value of the payments in the nature of compensation to (or for the benefit of) the Executive that are contingent on a Change in Control (with a Change in Control for this purpose being defined in terms of a “change” described in Code section 280G(b)(2)(A)(i) or (ii)), do not exceed 2.999 multiplied by the Base Amount. For this purpose, cash Severance Payments will be reduced first (if necessary, to zero), and all other, non-cash Severance Payments will be reduced next (if necessary, to zero). For purposes of the limitation described in the preceding sentence, the following will not be taken into account: (1) any portion of the Gross-Up Payment attributable Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Excise TaxDate of Termination, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the (2) any portion of the GrossTotal Payments that, in the opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of Code section 280G(b)(2). (f) For purposes of this Section 3.03, the value of any non-Up Payment being repaid cash benefit or any deferred payment or benefit included in the Total Payments will be determined by the Executive to Accounting Firm in accordance with the extent that such repayment results in a reduction in Excise Tax, FICA principles of Code sections 280G(d)(3) and Medicare withholding taxes and/or federal, state or local income taxes) 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 Payment4), the Company shall make an additional Gross-Up Payment, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined.

Gross-Up Payment. In the event that This Section 14.1 applies if (i) any amount required to be paid or distributed to the Executive becomes entitled to the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) Agreement and any other amounts otherwise required to be paid or distributed to the Executive by reason the Company shall constitute a parachute payment within the meaning of Section 280G of the accelerated vesting Code, (ii) the aggregate of stock options thereunder such parachute payments (together, the "Total Benefits"), and in “Parachute Payments”) shall cause the event that any of the Total Benefits will Executive to be subject to the excise tax on excess parachute payments under Section 4999 of the Code (the “Excise Tax”), or any successor or similar provision thereof and (iii) the total of all such Parachute Payments equals or exceeds one hundred ten percent (110%) of the amount that could be paid to the Executive without the Executive incurring an Excise Tax liability. In that event, the Company shall pay to the Executive an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive, Executive shall receive after deduction the payment of any Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Tax and FICA and Medicare withholding or other 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 Cod, and all "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") 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 on the Gross-Up Payment, shall equal the amount which he would have received if the Excise Tax had not been imposed. The Gross-Up Payment shall be the sum of the following: (a) The Excise Taxes imposed on and paid by the Executive on account of the excess Parachute Payments; (b) Any federal income tax, social security tax, unemployment tax or Excise Tax imposed on and paid by the Executive as a result of the Gross-Up Payment required to be made under this Section 14.1; and (c) Any state income or other tax imposed on and paid by the Executive as a result of the Gross-Up Payment required to be made under this Section 14.1. The Gross-Up Payment shall be deemed made within thirty (30) days following the date the Executive remits the related Excise Taxes or other taxes to pay federal income taxes at the highest marginal rate appropriate taxing authorities. The Gross-Up Payment shall in any event be paid to the Executive no later than the last day of federal income taxation in the calendar year immediately following the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at Executive remits 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)related Excise Taxes or other taxes. In the event that the any Excise Tax and/or other tax giving rise to a Gross-Up Payment is subsequently determined to be less than the amount taken into account hereunder at actually remitted by the time Executive and the Executive receives a refund of termination such Excise Tax and/or other tax, within thirty (30) days of the Executive's employment, receiving such refund the Executive shall repay to the Company, at Company the time that the entire 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 portion of 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 federal, state or local income taxes) 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 refund (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Paymentportion designated as interest), the Company shall make an additional Gross-Up Payment, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined.

Gross-Up Payment. (a) In the event it is determined that any payment, benefit, entitlement or distribution of any type to or for the Executive becomes entitled to benefit of the Severance Benefits or any other benefits or payments under this Agreement (other than Executive, pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 agreementotherwise, plan or arrangement with by the Company, any Person whose actions result in person or entity who or which acquires ownership or effective control of the Company, or ownership of a Change in Control or any Person affiliated with substantial portion of the assets of the Company or such Person) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) 280G of the CodCode and the regulations thereunder, and all "excess parachute payments" within or any Affiliate of the meaning Company or of any such person or entity (the Section 280G(b)(1“Total Payments”) shall would be treated as subject to the Excise Tax, unless in the opinion of excise tax counsel ("Tax Counsel") selected imposed 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) 4999 of the Code in excess of or any similar tax that may hereafter be imposed together with 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 Base Amount“Excise Tax”), or are otherwise not subject then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) prior to the date on which any Excise TaxTax is due (through withholding or otherwise) in an amount such that after payment by the Executive of all income, excise, employment and other taxes on the Gross-Up Payment (iiand any interest and penalties imposed with respect thereto) 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 Executive retains an amount of the Gross-Up PaymentPayment equal to the Excise Tax imposed upon the Total Payments. (b) All mathematical determinations and determinations as to whether any of the Total Payments are “parachute payments” (within the meaning of Section 280G of the Code), the Executive shall in each case which determinations are required to be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the made under this paragraph, including whether a 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 Terminationrequired, 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 Gross-Up Payment, and local income taxes amounts relevant to the last sentence of this paragraph, shall be made by an independent accounting firm retained by the Company as selected by the Executive from among the largest four accounting firms in the United States (the “Accounting Firm”). The Accounting Firm shall provide to the Company and to the Executive its determination (the “Determination”), together with detailed supporting calculations regarding the amount of any Gross-Up Payment and any other relevant matter, within ten (10) days after receipt of notice from the Executive reasonably requesting a Determination or such earlier time as is requested by the Company. If the Accounting Firm determines that would otherwise be deductible no Excise Tax is payable by the Executive). In , it shall furnish the event Executive with a written statement that the such Accounting Firm has concluded that no Excise Tax is subsequently payable (including the basis for such conclusion) and that the Executive has “substantial authority” within the meaning of Treasury Regulation 1.6662-4(d) not to report any Excise Tax on the Executive’s federal income tax return. If a Gross-Up Payment is determined to be less than payable, it shall be paid to the amount taken into account hereunder Executive within ten (10) days after the Determination is delivered to the Company or the Executive. Any Determination by the Accounting Firm shall be binding upon the Company and the Executive, absent manifest error, subject to this Section 10. All fees and expenses of the Accounting Firm shall be paid by the Company. (c) As a result of uncertainty in the application of Section 4999 of the Code at the time of termination the initial Determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments not made by the Company and the Executive should have been made (“Underpayment”), or that Gross-Up Payments will have been made by the Company and the Executive that should not have been made (“Overpayments”). In either such event, the Accounting Firm shall determine the amount of the Executive's employmentUnderpayment or Overpayment that has occurred. In the case of an Underpayment, the Executive Company promptly shall repay pay, or cause to the Companybe paid, at the time that the amount of such reduction in Excise Tax is finally determinedUnderpayment 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 (1) the Executive shall not in any event be obligated to return to the Company an amount greater than the net after-tax portion of the Overpayment that he has retained or recovered as a refund from the applicable taxing authorities and (2) this provision shall be interpreted in a manner consistent with the intent of Section 10(a) above, which is to make the Executive whole, on an after-tax basis, from the application of the Excise Tax, it being understood that the correction of an Overpayment may result in the Executive repaying to the Company an amount that is less than the Overpayment. Any payment to be made to correct an Underpayment or Overpayment, as the case may be, (the “Correcting Payment”) shall be accompanied by an interest payment on the Correcting Payment at an annual rate of 8% for the period from the date of the Gross-Up Payment attributable through the date of payment of the Correcting Payment. (d) In the event it is determined that any payment under Section 4.7 (“Covered Payments”) would be subject to any excise tax, together with any interest or penalties, pursuant to Section 409A of the Code and regulations promulgated thereunder from time to time, or any similar or successor tax (any such excise tax, together with any such interest and penalties, being collectively referred to as a “409A Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “409A Gross-Up Payment”) prior to the date on which such Excise Tax is due to be paid (through withholding or otherwise) an amount such that after payment by the Executive of all income, excise, employment and other taxes thereon (and any interest or penalties imposed with respect to such reduction (plus that portion taxes), the Executive retains an amount of the 409A Gross-Up Payment attributable equal to the 409A Excise Tax, federal, state and local income taxes and FICA and Medicare withholding taxes imposed Tax on the portion of the Gross-Up Payment being repaid such Covered Payments. If requested by the Executive to Executive, all relevant determinations shall be made in the extent that such repayment results in first instance by a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) 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, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable nationally recognized independent accounting firm retained by the Executive Company, with respect all fees and expenses to such excess) at be paid by the time that the amount of such excess is finally determinedCompany.

Gross-Up Payment. In the event that any payment or distribution by the Employer to or for the benefit of the Executive becomes entitled to the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any other agreement, plan or arrangement with the Company, any Person whose actions result in additional payments required under this Section 36(d)) (a Change in Control or any Person affiliated with the Company or such Person“Payment”) shall would be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986 (the “Code”) or any interest or penalties are incurred by the Executive with respect to such excise tax (collectively, the “Excise Tax”), unless then the Executive will be entitled to receive an additional payment (a “Gross-Up Payment”) in the opinion of tax counsel ("Tax Counsel") selected an amount such that after payment by the Company's independent auditors Executive of all taxes (including any income and acceptable employment taxes and interest or penalties imposed with respect to the Executive, such other payments or benefits (in whole or in parttaxes) 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 and 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 imposed on 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 retains an 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 equal to the Excise Tax imposed on the Payments. All determinations required to be made under this Section 3(d), including whether and when a Gross-Up Payment is required and the amount of such reduction Gross-Up Payment, will be made by the independent accounting firm of the Holding Company immediately prior to the Executive’s termination of employment (plus the “Accounting Firm”). All fees and expenses of the Accounting Firm will be borne solely by the Holding Company, and any determination by the Accounting Firm will be binding upon the Holding Company and the Executive. Any Gross-Up Payment, as determined pursuant to this Section 3(d), will be paid by the Employer or Holding Company to the Executive within ten days of the receipt of the Accounting Firm’s determination. (i) If the Accounting Firm determines that portion no Excise Tax is payable by the Executive, it shall so indicate to the Executive in writing. (ii) In the event there is an under-payment of the Gross-Up Payment attributable due to the Excise Tax, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on uncertainty in the portion application of Section 4999 of 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 federal, state or local income taxes) 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 Code at the time of the termination initial determination by the Accounting Firm and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will determine the amount of any such under-payment that has occurred and such amount will be promptly paid by the Employer or the Holding Company to or for the benefit 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, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined.

Gross-Up Payment. In the event that the Executive becomes entitled Company undergoes a "Change in Ownership or Control" (as defined below), the Company shall, within 30 days after the date of such Change in Ownership or Control determine and notify the Employee (with reasonable detail regarding the basis for its determinations) (i) which of the payments or benefits due to the Severance Benefits Employee following such Change in Ownership or any other benefits or payments under this Agreement Control constitute "Contingent Compensation Payments" (other than as defined below), (ii) the amount, if any, of the excise tax (the "Excise Tax") payable pursuant to this SectionCode Section 4999, by the Employee with respect to such Contingent Compensation Payment, and (iii) by reason the amount of the accelerated vesting Gross-Up Payment (as defined below) due to the Employee with respect to such Contingent Compensation Payment. Within 30 days after delivery of stock options thereunder (togethersuch notice to the Employee, the Employee shall deliver a response to the Company (the "Total BenefitsEmployee Response")) stating either (A) that he agrees with the Company's determination pursuant to the preceding sentence, or (B) that he disagrees with such determination, in which case he shall indicate which payment and/or benefits should be characterized as a Contingent Compensation Payment, the amount of the Excise Tax with respect to such Contingent Compensation Payment and the amount of the Gross-Up Payment due to the Employee with respect to such Contingent Compensation Payment. The amount and characterization of any item in the Employee Response shall be final; provided, however, that in the event that any the Employee fails to deliver an Employee Response on or before the required date, the Company's initial determination shall be final. Within ninety (90) days after the due date of the Total Benefits will be subject each Contingent Compensation Payment to the Excise TaxExecutive, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the ExecutiveEmployee, after deduction of any Excise Tax on the Total Benefits and any federalin cash, 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 Cod, and all "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") 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 portion of 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 federal, state or local income taxes) 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, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that Contingent Compensation Payment, in the amount of such excess is finally determineddetermined pursuant to this Section 5.4(a).

Gross-Up Payment. In the event If eRCG or its accountants determine that the Executive becomes entitled to the Severance Benefits any payments called for under this Agreement or any other payments or benefits made available to Executive by eRCG or payments its affiliates will result in Executive being subject to an excise tax ("EXCISE TAX") under this Agreement (other than pursuant to this Section) by reason Section 4999 of the accelerated vesting Internal Revenue Code of stock options thereunder (together1986, the "Total Benefits")as amended, and in the event that or any successor statute thereto, or if an Excise Tax is assessed against Executive as a result of the Total Benefits will be subject to the Excise Taxsuch payments or other benefits, the Company eRCG shall pay to the Executive an additional amount (the make a "Gross-Up Payment" (hereinafter defined) to or on behalf of Executive as and when such determination(s) and assessment(s), as appropriate, are made, subject to the conditions of this Section 4.5. A "Gross-Up Payment" shall mean a payment to or on behalf of Executive that shall be sufficient to pay (i) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Benefits and in full, (ii) any federal, state and local income tax, tax and Social Security or other employment tax on the payment made to pay such 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 as well as any of the Total Benefits will be subject to the additional 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 Cod, and all "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") 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 on the Gross-Up Payment, and (iii) any interest or penalties assessed by the Internal Revenue Service on the Executive if such interest or penalties are attributable to eRGC's failure to comply with its obligations under this Section 4.5 or applicable law. Any determination under this Section 4.5 by eRCG or its accountants shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation made 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 accordance with Section 68 280G of the Code in the amount of itemized deductions allowable to the and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and related case law. Executive applies first to reduce the amount of shall take 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 action (other than the amount taken into account hereunder at the time of termination of the waiving Executive's employmentright to any payments or benefits) as eRCG may reasonably request under the circumstances to mitigate or challenge such tax. If eRCG reasonably requests that Executive take action to mitigate or challenge any such tax or assessment and Executive complies with such request, the Executive eRCG 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 portion of 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 federal, state or local income taxes) 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, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the provide Executive with respect to such excess) at the time that the amount of information and such excess is finally determinedexpert advice and assistance from eRCG's accountants, lawyers and other advisors as Executive may reasonably request and shall pay for all expenses incurred in effecting such compliance and any related fines, penalties, interest and other assessments.

Gross-Up Payment. In the event that the Executive becomes entitled Notwithstanding anything to the Severance Benefits or any other benefits or payments under contrary in this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (togetherAgreement, the "Total Benefits"), and in the event that if any of the Total Benefits will payments or benefits which the Executive has the right to receive from the Corporation (the “Payments”) are later determined to be subject to the Excise tax imposed by Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties with respect to such tax (such tax, together with any such interest or penalties, are hereinafter collectively referred to as the “409A Tax”), the Company Corporation shall pay to the Executive an additional amount payment (the "a “Gross-Up up Payment"”) in an amount such that the net amount retained by the Executive, after 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 of all taxes (including any interest or penalties imposed with a Change in Control or the Executive's termination of employment (whether pursuant respect 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 Cod, and all "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") 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 (itaxes), above)including any income tax imposed on any Gross-up Payment, 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 Executive retains an amount of the Gross-Up Payment, up Payment equal to the Executive 409A Tax imposed upon the Payments. The Compensation Committee of the Board shall be deemed make an initial determination as to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the whether a Gross-Up up Payment is to be made required 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 any such Gross-up Payment. The Executive shall notify the Corporation immediately in writing of any claim by the Internal Revenue Service which, if successful, would require the Corporation to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by the Executive applies first to reduce Compensation Committee of the amount Board) within five days of the receipt of such state and local income taxes that would otherwise be deductible by the Executive)claim. 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 The Corporation 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 portion of 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 federal, state or local income taxes) 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, determined as previously described, to notify the Executive in respect writing at least five days prior to such excess (plus the due date of any interest, penalties or additions payable by the Executive response required with respect to such excessclaim if it plans to contest the claim. If the Corporation decides to contest such claim, then the Executive shall cooperate fully with the Corporation in such action; provided, however, the Corporation shall bear and pay all costs and expenses (including additional interest and penalties) at incurred in connection with such action and shall indemnify and hold the time that Executive harmless, on an after-tax basis, for any 409A Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Corporation’s action. If, as a result of the Corporation’s action with respect to a claim, the Executive receives a refund of any amount paid by the Corporation with respect to such claim, then the Executive shall promptly pay such refund to the Corporation. If the Corporation fails to timely notify the Executive whether it will contest such claim or the Corporation determines not to contest such claim, then the Corporation shall immediately pay to the Executive the portion of such excess is finally determinedclaim, if any, which it has not previously paid to the Executive.

Gross-Up Payment. In the event that (i) the Executive Employee becomes entitled to the Severance Benefits or any other benefits or payments provided under Section 10.2 of this Agreement (other than pursuant to this Sectionthe "Change in Control Payments") by reason and any of the accelerated vesting of stock options thereunder Change in Control Payments will be subject to the tax (together, the "Total BenefitsExcise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), and in or any successor provision, or (ii) any payments or benefits received or to be received by the event that Employee pursuant to the terms of any of other plan, arrangement or agreement (the Total Benefits "Benefit Payments") will be subject to the Excise Tax, the Company shall pay to the Executive Employee an additional amount (the "Gross-Up Payment") such that the net amount retained by the ExecutiveEmployee, after deduction of any Excise Tax on the Total Benefits Change in Control Payments and the Benefit Payments, and any federal, state and local income tax, tax and Excise Tax and FICA and Medicare withholding taxes upon the payment provided for by this SectionSection 10.3, shall be equal to the Total BenefitsChange in Control Payments and the Benefit Payments, provided, however, that in determining the amount of the Gross-Up Payment, any Excise Tax on the Change in Control Payments and the Benefit Payments shall be determined using a rate no higher that 20%. For purposes of determining whether any of the Total Benefits Change in Control Payments or the Benefit 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 Employee in connection with a Change change in Control control of the Company or the ExecutiveEmployee's termination of employment (whether pursuant to the terms of this Agreement the agreement or any other agreementplan, plan arrangement or arrangement agreement with the Company, any Person person whose actions result in a Change change in Control control or any Person person affiliated with the Company or such Personpersons) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the CodCode, and all "excess parachute payments" within the meaning the 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, Employee 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 TaxCode, (ii) the amount of the Total Benefits which Change in Control Payments and the Benefit Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Change in Control Payments and the Benefits reduced by the amount of such Total Benefits that in the opinion of Tax Counsel are not parachute payments, Payments or (B) the amount of excess parachute payments within the meaning of Section Sections 280G(b)(1) and (4) (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 Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate rates of taxation in the state and locality of the ExecutiveEmployee's residence on the Date date of Terminationtermination, net of the maximum 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)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 the ExecutiveEmployee's employment, the Executive Employee shall repay to the Company, Company at the that time that the amount of such reduction in Excise Tax as is finally determined, determined to be 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 portion of 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 federal, state or local income taxes) 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 ExecutiveEmployee'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 Grossgross-Up Payment, determined as previously described, up payment to the Executive Employee in respect to of such excess (plus any interest, penalties or additions interest payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined.

Gross-Up Payment. In the event that the Executive becomes entitled to the Severance Benefits or any other benefits or payments under The term “Gross Up Payment” as used in this Agreement shall mean a payment to or on behalf of Employee which shall be sufficient to pay (other than pursuant to this Section1) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction 100% of any Excise Tax on the Total Benefits and excise tax described in this Section 11, (2) 100% of any federal, state and local income tax, Excise Tax tax and FICA social security and Medicare withholding taxes upon other employment tax on the payment provided for made to pay such excise tax as well as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by this Section, the Internal Revenue Service on Employee which are related to the timely payment of such excise tax (unless such interest or penalties are attributable to Employee’s willful misconduct or gross negligence with respect to such timely payment). A Gross Up Payment shall be equal made by the Company in a lump sum at the Company’s option either directly to the Total Benefits. For purposes of determining whether United States Treasury or to Employee after either the Company or the Company’s independent accountants determine that any of the Total Benefits will be subject to the Excise Tax payments and the amount of such Excise Tax, (i) benefits called for under this Agreement together with any other payments or and benefits received or made available to be received Employee 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 Company and any other agreement, plan or arrangement with the Company, any Person whose actions person will result in a Change in Control or any Person affiliated with Employee being subject to an excise tax under § 4999 of the Company Code or such Person) shall be treated an excise tax is assessed against Employee as "parachute payments" within the meaning a result of Section 280G(b)(2) of the Cod, any such payments and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject other benefits if Employee takes such action (other than waiving Employee’s right 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 any 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 Amountpayments or benefits which Employee has expressly agreed to waive under this Section 11) as the Company reasonably requests under the circumstances to mitigate or challenge such excise tax; provided, however, if the Company or are otherwise the Company’s independent accountants make the determination described in this Section 11 and, further, determine that Employee will not be subject to any such excise tax if Employee waives Employee’s right to receive a part of such payments or benefits and such part does not exceed $10,000, Employee shall irrevocably waive Employee’s right to receive such part if an independent accountant or lawyer retained by Employee and paid by the Excise Tax, (ii) Company agrees with the amount of determination made by the Total Benefits which shall be treated as subject Company or the Company’s independent accountants with respect 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 effect of such reduction in Excise Tax is finally determined, the portion payments or benefits. Any determinations under this Section 11 shall be made in accordance with § 280G of the Gross-Up Payment attributable Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law and, if the Company reasonably requests that Employee take action to mitigate or challenge, or to mitigate and challenge, any such reduction tax or assessment (plus that portion other than waiving Employee’s right to any payments or benefits in excess of the Gross-Up Payment attributable payments or benefits which Employee has expressly agreed to the Excise Tax, federal, state waive under this Section 11 and local income taxes and FICA and Medicare withholding taxes imposed on the portion of the Gross-Up Payment being repaid by the Executive to the extent that Employee complies with such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) 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)request, the Company shall make an additional Gross-Up Paymentprovide Employee with such information and such expert advice and assistance from the Company’s independent accountants, determined lawyers and other advisors as previously describedEmployee may reasonably request and shall pay for all expenses incurred in effecting such compliance and any related fines, to the Executive in respect to such excess (plus any interestpenalties, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedinterest and other assessments.

Gross-Up Payment. In the event that the Executive becomes entitled Notwithstanding anything to the Severance Benefits or any other benefits or payments under contrary in this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (togetherAgreement, the "Total Benefits"), and in the event that if any of the Total Benefits will payments or benefits which the Executive has the right to receive from the Corporation (the “Payments”) are later determined to be subject to the Excise tax imposed by Section 409A of the Code, or any interest or penalties with respect to such tax (such tax, together with any such interest or penalties, are hereinafter collectively referred to as the “409A Tax”), the Company Corporation shall pay to the Executive an additional amount payment (the "a “Gross-Up up Payment"”) in an amount such that the net amount retained by the Executive, after 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 of all taxes (including any interest or penalties imposed with a Change in Control or the Executive's termination of employment (whether pursuant respect 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 Cod, and all "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") 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 (itaxes), above)including any income tax imposed on any Gross-up Payment, 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 Executive retains an amount of the Gross-Up up Payment equal to the 409A Tax imposed upon the Payments. The Compensation Committee of the Board shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment, . The Corporation's payment of any amount due to the Executive by reason of this Section 1.6 shall be deemed to pay federal income taxes at made promptly after the highest marginal rate Compensation Committee makes its determination, but in any event no later than December 31 of federal income taxation in the calendar year following the year in which the Executive makes his payment of the 409A Tax to the Internal Revenue Service. The Executive shall notify the Corporation immediately in writing of any claim by the Internal Revenue Service which, if successful, would require the Corporation to make a Gross-Up up Payment is to be made and state and local income taxes at (or a Gross-up Payment in excess of that, if any, initially determined by the highest marginal rate of taxation in the state and locality Compensation Committee of the Executive's residence on the Date of Termination, net Board) within five days of the reduction in federal income taxes which could be obtained from deduction receipt 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)claim. 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 The Corporation 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 portion of 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 federal, state or local income taxes) 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, determined as previously described, to notify the Executive in respect writing at least five days prior to such excess (plus the due date of any interest, penalties or additions payable by the Executive response required with respect to such excessclaim if it plans to contest the claim. If the Corporation decides to contest such claim, then the Executive shall cooperate fully with the Corporation in such action; provided, however, the Corporation shall bear and pay all costs and expenses (including additional interest and penalties) at incurred in connection with such action and shall indemnify and hold the time that Executive harmless, on an after-tax basis, for any 409A Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Corporation’s action. If, as a result of the Corporation’s action with respect to a claim, the Executive receives a refund of any amount paid by the Corporation with respect to such claim, then the Executive shall promptly pay such refund to the Corporation. If the Corporation fails to timely notify the Executive whether it will contest such claim or the Corporation determines not to contest such claim, then the Corporation shall immediately pay to the Executive the portion of such excess is finally determinedclaim, if any, which it has not previously paid to the Executive.

Gross-Up Payment. In the event that the Executive If Associate becomes entitled to payments in the nature of compensation, including without limitation the Earned Severance Benefits or any other Benefit, all salaries, bonuses, severance pay, fringe benefits or payments under this Agreement (other than pursuant to this Section) by reason of and the accelerated vesting of stock options thereunder or other equity-based compensation that constitute a "parachute payment" under Section 280G of the Internal Revenue Code of 1986, as amended (togetherthe "Code"), or any successor statute then in effect (collectively, the "Total BenefitsAggregate Change of Control Payments"), and in the event that any of the Total Benefits will be subject to the Excise Tax, then the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such to Associate at the time specified in the following paragraph. The Gross-Up Payment shall be equal to the amount necessary so that the net amount of the Aggregate Change of Control Payments retained by the ExecutiveAssociate, after deduction subtracting the parachute excise tax imposed by Section 4999 of the Code, as amended, or any successor statute then in effect (the "Excise Tax"), and after also subtracting all federal, state or local income tax, FICA tax and 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 SectionGross-Up Payment, shall be equal to the Total Benefits. For purposes of determining whether any net amount 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 Aggregate 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 Cod, and all "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") 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 Payments that Associate would have retained if no 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), has been imposed and (iii) the value of any nonno Gross-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 CodeUp Payment had been paid. For purposes of determining the The amount of the Gross-Up Payment, the Executive Payment shall be deemed determined in good faith by independent accountants or tax counsel selected by the Company and acceptable to pay Associate, who shall apply the following assumptions: (i) Associate shall be treated as paying federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to made, and (ii) Associate shall be made and treated as paying state and local income taxes at the highest marginal rate of taxation rate(s) in the state and calendar year in which the Gross-Up Payment is made in the locality of the ExecutiveAssociate's residence on as of the Date of TerminationTermination Date, net of the maximum reduction in federal income taxes which that could be obtained from deduction of such deducting those state and local taxes (calculated by assuming taxes. The Gross-Up Payment shall be made within twenty business days after the effective date of Associate's termination or resignation, provided that any reduction under Section 68 of if 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 Gross-Up Payment cannot be determined within 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 employmenttime, the Executive Company shall repay to pay Associate within that time an estimate, determined in good faith by the Company, at of the time that the minimum amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction and shall pay the remainder (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 portion of 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 federal, state or local income taxes) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but in no event later than the 60th day after the effective date of Associate's termination or resignation. In If the event that estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Associate within five business days after written demand. If the actual Excise Tax imposed is determined to exceed more than the amount that was taken into account hereunder at in determining 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 Grossgross-Up Payment, determined as previously described, to the Executive up payment in respect to of such excess (plus any interest, penalties or additions payable by interest at the Executive with respect to such excessrate provided in Section 1274(b)(2)(B) of the Code) at the time that the amount of such the excess is finally determined."

Gross-Up Payment. In the event that If the Executive becomes entitled to payments and benefits following a Change in Control under Section 6(f) or the Severance Benefits vesting of the Options accelerate following a Change in Control as provided in the Stock Option Agreements, the Company will cause its independent auditors promptly to review, at the Company's sole expense, the applicability of Code Section 4999 to any payment or distribution of any other benefits type by the Company to or payments under this Agreement (other than for the Executive's benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Section) by reason of Agreement, the accelerated vesting of stock options thereunder Stock Option Agreements or otherwise (together, the "Total BenefitsPayments"). If the auditor determines that the Total Payments result in an excise tax imposed by Code Section 4999 or any comparable state or local law, 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 "Excise Tax"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive will make an additional amount cash payment (the a "Gross-Up Payment") to the Executive within 10 days after such determination equal to an amount such that the net amount retained after payment by the ExecutiveExecutive of all taxes (including any interest or penalties imposed with respect to such taxes), after deduction of including 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 Cod, and all "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") 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 imposed upon 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 would retain an 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 equal to such reduction (plus that portion the Excise Tax imposed upon the Total Payments. For purposes of the foregoing determination, the Executive's tax rate will be deemed to be the highest statutory marginal state and federal tax rate (on a combined basis) then in effect. If no determination by the Company's auditors is made prior to the time the Executive is required to file a tax return reflecting the Total Payments, the Executive will be entitled to receive from the Company a Gross-Up Payment attributable calculated on the basis of the Excise Tax the Executive reported in such tax return, within 10 days after the later of the date on which the Executive files such tax return or the date on which the Executive provides a copy thereof to the Company. In all events, if any tax authority determines that a greater Excise TaxTax should be imposed upon the Total Payments than is determined by the Company's independent auditors or reflected in the Executive's tax return pursuant to this Section 6(g), federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the portion of Executive will be entitled to receive from the Company the full Gross-Up Payment being repaid by calculated on the Executive to the extent that such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) plus interest on basis of 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 be payable by such tax authority within 10 days after 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), Executive notifies the Company shall make an additional Gross-Up Payment, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determineddetermination.

Gross-Up Payment. In (a) If it shall be determined that any amount paid, distributed or treated as paid or distributed by the event that Company to or for the benefit of the Executive becomes entitled to the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any other agreementadditional payments required under this Article 7) (a "Payment") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, plan as amended (the "Code") or arrangement 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, being hereinafter collectively referred to as the "Excise Tax"), then the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive of all federal, state and local taxes (including any interest or penalties imposed with respect to such taxes), including without limitation, any income taxes (including any interest or penalties imposed with respect thereto) and Excise Tax imposed on the Gross-up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments, provided, however, that in no event will the amount of the Gross-Up Payment payable pursuant to this Article 7 exceed Two Hundred Fifty Thousand Dollars ($250,000). (b) The determinations of whether and when a Gross-Up Payment is required under this Article 7 shall be made by independent tax counsel (the "Tax Counsel") based on its good faith interpretation of applicable law. The amount of such Gross-Up Payment and the valuation assumptions to be utilized in arriving at such determination shall be made by an independent nationally recognized accounting firm (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. The Tax Counsel and Accounting Firm shall initially be appointed by the Company after consultation in good faith with the Executive and subject to the approval of the Executive (which approval shall not be unreasonably withheld), provided, however, that if the potential amount of the Gross-Up Payment (but for the limit in Section 7.1(a) above) could exceed Two Hundred Fifty Thousand Dollars ($250,000), the Executive shall have the opportunity to appoint a new Tax Counsel and Accounting Firm after consultation in good faith with the Company. If the Tax Counsel and Accounting Firm selected by the Company determine that the amount of the Gross-Up Payment is less than Two Hundred Fifty Thousand Dollars ($250,000), any Person whose actions result but Executive provides an opinion of a second independent Tax Counsel that the Gross-Up Payment (but for the limit in a Change Section 7.1(a) above) could be greater than Two Hundred Fifty Thousand Dollars ($250,000) then Executive shall be entitled to appoint the Tax Counsel and the Accounting Firm after consultation in Control or any Person affiliated good faith with the Company or such Person) and subject to the approval of the Company (which approval shall not be unreasonably withheld). All fees and expenses of any Tax Counsels and Accounting Firms referred to above shall be treated borne by the Company. Any Gross-Up Payment, as determined pursuant to this Article 7, shall be paid by the Company to the Executive within ten (10) days of the receipt of the Accounting Firm's determination. Any determinations by the Tax Counsel and Accounting Firm shall be binding upon the Company and the Executive, provided, however, if it is later determined that there has been an underpayment of Excise Tax and that Executive is required to make an additional Excise Tax payment(s) on any Payment or Gross-Up Payment, the Company shall provide a similar full gross-up on such additional liability, subject to the overall Two Hundred Fifty Thousand Dollars ($250,000) limit set forth in Section 7.1(a) above. (c) For purposes of any determinations made by any Tax Counsel and Accounting Firm acting under Section 7.1(b) above: (i) All Payments and Gross-Up Payments with respect to Executive shall be deemed to be "parachute paymentsPayments" within the meaning of under Section 280G(b)(2) of the Cod, Code and all to be "excess parachute payments" within the meaning the under 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 that are otherwise not subject to the Excise Tax, (ii) the amount of the Total Benefits which shall be treated as fully subject to the Excise Tax shall be equal under Section 4999 of the Code, except to the lesser of extent (Aif any) the total amount of the Total Benefits reduced by the amount of that such Total Benefits that in the opinion of Tax Counsel are determines in writing in good faith that a Payment in whole or in part does not constitute a "parachute payments, payment" or otherwise is not subject to Excise Tax; (Bii) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i), above), and (iii) the The value of any non-cash benefits or any deferred payment or benefit delayed payments or benefits shall be determined by the Company's independent auditors in accordance a manner consistent with the principles of sections 280G(d)(3) and (4) Section 280G of the Code. For purposes of determining the amount of the Gross-Up Payment, the ; and (iii) Executive shall be deemed to pay federal federal, state and local income taxes at the highest actual marginal rate of federal income taxation applicable to individuals 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 Terminationmade, net of the any applicable reduction in federal income taxes which could be obtained from deduction of such for any 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 paid on the portion of the Gross-Up Payment being repaid by the Executive to the extent that such repayment results amounts in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) 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, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedquestion.

Gross-Up Payment. In the event that (i) the Executive becomes entitled to the Severance Benefits or any other payment and benefits or payments provided under Section 1 of this Agreement (other than pursuant to this Sectionthe "Change of Control Payment") by reason and any of the accelerated vesting Change of stock options thereunder Control Payment will be subject to the tax (together, the "Total BenefitsExcise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), and in or any successor provision, or (ii) any payments or benefits received or to be received by the event that Executive pursuant to the terms of any of other plan, arrangement or agreement (the Total Benefits "Benefit Payments") will be subject to the Excise Tax, the Company Employer shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Benefits Change of Control Payment and the Benefit Payments, and any federal, state and local income tax, tax and Excise Tax and FICA and Medicare withholding taxes upon the payment provided for by this SectionSection 3, shall be equal to the Total BenefitsChange of Control Payment and the Benefit Payments; provided, however, that in determining the amount of the Gross-Up Payment, any Excise Tax on the Change of Control Payment and the Benefit Payments shall be determined using a rate no higher than twenty percent (20%). For purposes of determining whether any of the Total Benefits Change of Control Payment or the Benefit 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 change in Control control of the Employer or the Executive's termination of employment (whether pursuant to the terms of this Agreement or any other agreementplan, plan arrangement or arrangement agreement with the CompanyEmployer, any Person person whose actions result in a Change change in Control control or any Person person affiliated with the Company Employer or such Personpersons) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the CodCode, and all "excess parachute payments" within the meaning the of Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless except to the extent that, in the opinion of tax counsel ("Tax Counsel") selected by the Company's independent auditors and acceptable to Board of Directors of the ExecutiveEmployer, 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, Code; (ii) the amount of the Total Benefits which Change of Control Payment and the Benefit Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Change of Control Payment and the Benefits reduced by the amount of such Total Benefits that in the opinion of Tax Counsel are not parachute payments, Payments or (B) the amount of excess parachute payments within the meaning of Section Sections 280G(b)(1) and (4) (after applying clause (i), above), and ; and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by tax counsel, selected by the Company's independent auditors Board of Directors of the Employer, in accordance with the principles of sections 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 rates of taxation in the state and locality of the Executive's residence on the Date date of Terminationtermination, net of the maximum 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)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 the Executive's employment, the Executive shall repay to the Company, Employer at the that time that the amount of such reduction in Excise Tax as is finally determined, determined to be 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 portion of 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 federal, state or local income taxes) 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 Employer shall make an additional Grossgross-Up Payment, determined as previously described, up payment to the Executive in respect to of such excess (plus any interest, penalties or additions interest payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined.

Gross-Up Payment. In the event that the The term “Gross Up Payment” as used in this Employment Agreement shall mean a payment to or on behalf of Executive becomes entitled which shall be sufficient to the Severance Benefits or pay (1) 100% of any other benefits or payments under excise tax described in this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"§4.2(g), and in the event that any (2) 100% of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Tax tax and FICA social security and Medicare withholding taxes upon other employment tax on the payment provided for made to pay such excise tax as well as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by this Section, the Internal Revenue Service on Executive which are related to the timely payment of such excise tax (unless such interest or penalties are attributable to Executive’s willful misconduct or gross negligence with respect to such timely payment). A Gross Up Payment shall be equal to made by ICE promptly (but no later than by the Total Benefits. For purposes end of determining whether any of Executive’s taxable year next following Executive’s taxable year in which the Total Benefits will be subject to the Excise Tax and the amount payment of such Excise Tax, (iexcise tax is remitted) after either ICE or ICE’s independent accountants or attorneys determine that any payments and benefits called for under this Employment Agreement together with any other payments or and benefits received or made available to be received Executive 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 ICE and any other agreement, plan or arrangement with the Company, any Person whose actions person will result in a Change in Control or any Person affiliated with Executive’s being subject to an excise tax under § 4999 of the Company Internal Revenue Code of 1986, as amended (the “Code”) or such Person) shall be treated an excise tax is assessed against Executive as "parachute payments" within the meaning a result of Section 280G(b)(2) of the Cod, any such payments and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject other benefits if Executive takes such action (other than waiving Executive’s right 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 any 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 Amountpayments or benefits which Executive has expressly agreed to waive under this § 4.2(g)) as ICE reasonably requests under the circumstances to mitigate or challenge such excise tax; provided, however, if ICE or are otherwise ICE’s independent accountants or attorneys make the determination described in this § 4.2(g) and, further, determine that Executive will not be subject to any such excise tax if Executive waives Executive’s right to receive a part of such payments or benefits and such part does not exceed $15,000, Executive shall irrevocably waive Executive’s right to receive such part if an independent accountant or lawyer retained by Executive and paid by ICE agrees with the Excise Tax, (ii) the amount of the Total Benefits which shall be treated as subject determination made by ICE or ICE’s independent accountants or attorneys with respect 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 effect of such reduction in Excise Tax is finally determined, the portion payments or benefits. Any determinations under this §4.2(g) shall be made in accordance with § 280G of the Gross-Up Payment attributable Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law and, if ICE reasonably requests that Executive take action to mitigate or challenge, or to mitigate and challenge, any such reduction tax or assessment (plus that portion other than waiving Executive’s right to any payments or benefits in excess of the Gross-Up Payment attributable payments or benefits which Executive has expressly agreed to the Excise Taxwaive under this §4.2(g)) and Executive complies with such request, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the portion of 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 federal, state or local income taxes) 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 ICE shall make an additional Gross-Up Payment, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the provide Executive with respect to such excess) at the time that the amount of information and such excess is finally determinedexpert advice and assistance from ICE’s independent accountants, lawyers and other advisors as Executive may reasonably request and shall pay for all expenses incurred in effecting such compliance and any related fines, penalties, interest and other assessments.

Gross-Up Payment. In the event that the The term "Gross Up Payment" as used in this Employment Agreement shall mean a payment to or on behalf of Executive becomes entitled which shall be sufficient to the Severance Benefits or pay (1) 100% of any other benefits or payments under excise tax described in this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"Section 4.2(g), and in the event that any (2) 100% of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Tax tax and FICA social security and Medicare withholding taxes upon other employment tax on the payment provided for made to pay such excise tax as well as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by this Section, the Internal Revenue Service on Executive which are related to the timely payment of such excise tax (unless such interest or penalties are attributable to Executive's willful misconduct or gross negligence with respect to such timely payment). A Gross Up Payment shall be equal to made by the Total Benefits. For purposes of determining whether Company promptly after either the Company or the Company 's independent accountants determine that any of the Total Benefits will be subject to the Excise Tax payments and the amount of such Excise Tax, (i) benefits called for under this Employment Agreement together with any other payments and benefits made available to Executive by the Company and any other person will result in Executive's being subject to an excise tax under Section 4999 of the Internal Revenue Code of 1986, as amended (which shall be referred to in this Section 4.2(g) as the "Code") or such an excise tax is assessed against Executive as a result of any such payments and other benefits if Executive takes such action (other than waiving Executive's right to any payments or benefits received in excess of the payments or benefits which Executive has expressly agreed to be received by waive under this Section 4.2(g)) as the Executive in connection with a Change in Control Company reasonably requests under the circumstances to mitigate or the Executive's termination of employment (whether pursuant to the terms of this Agreement or any other agreementchallenge such excise tax; provided, plan or arrangement with the Companyhowever, any Person whose actions result in a Change in Control or any Person affiliated with if the Company or such Person) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, and all "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") selected by the Company's independent auditors and acceptable accountants make the determination described in this Section 4.2(g) and, further, determine that Executive will not be subject to the any such excise tax if Executive waives Executive, 's right to receive a part of such other payments or benefits (and such part does not exceed $25,000, Executive shall irrevocably waive Executive's right to receive such part if an independent accountant or lawyer retained by Executive and paid by the Company agrees with the determination made by the Company or the Company's independent accountants with respect to the effect of such reduction in whole payments or benefits. Any determinations under this Section 4.2(g) shall be made 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 accordance with Section 280G(b)(4) 280G of the Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law and, if the Company reasonably requests that Executive take action to mitigate or challenge, or to mitigate and challenge, any such tax or assessment (other than waiving Executive's right to any payments or benefits in excess of the Base Amount, payments or are otherwise not subject benefits which Executive has expressly agreed 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 waive under this Section 280G(b)(1) (after applying clause (i4.2(g), 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 complies with 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 portion of 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 federal, state or local income taxes) 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)request, the Company shall make an additional Gross-Up Payment, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the provide Executive with respect to such excess) at information and such expert advice and assistance from the time that the amount of Company 's independent accountants, lawyers and other advisors as Executive may reasonably request and shall pay for all expenses incurred in effecting such excess is finally determinedcompliance and any related fines, penalties, interest and other assessments.

Gross-Up Payment. In If the event Internal Revenue Service asserts that the Executive becomes entitled any portion of any payment made to the Severance Benefits or Employee pursuant to any other benefits or payments under provision of this Agreement (other than pursuant constitutes an Excess Parachute Payment and imposes an Excise Tax thereon, then the Company agrees that it will indemnify and hold harmless Employee in an amount equal to this Section) by reason of the accelerated vesting of stock options thereunder (togethersuch Excise Tax. Such amount shall be paid to Employee immediately pending a final judicial determination of, the "Total Benefits")or settlement determining, and in the event that any of the Total Benefits will be subject to such liability for the Excise TaxTax otherwise. In addition, the Company shall pay to the Executive an additional amount (the "a Gross-Up Payment") such that Payment to Employee or his estate in the net amount retained by the Executive, after deduction of any Excise Tax on the Total Benefits and incurred by Employee as a result of any severance compensation, accelerated exercisability of options, accelerated vesting of restricted shares and/or continuation of benefits under this Section 6, plus an amount equal to any federal, state and or local income tax, Excise Tax and FICA and Medicare withholding taxes upon tax imposed on Employee as the payment provided for by this Section, shall be equal to the Total Benefits. For purposes result 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 Cod, and all "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") selected by the Company's independent auditors and acceptable to the Executive, payment of any 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 Tax amount. Such Gross-Up Payment shall be treated as subject payable to Employee at the Excise Tax shall be equal to time the lesser of (A) the total amount of the Total Benefits reduced by the amount of respective applicable tax triggering 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 nonGross-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 CodeUp Payment is due. For purposes of determining the amount of the Gross-Up Payment, the Executive shall Employee will be deemed to (i) 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 made, and (ii) state and local income taxes at the highest marginal rate rates of taxation in the state and locality of his residence in the Executive's residence on calendar year in which the Date Gross-Up Payment is made net, in the case of Terminationclause (i), net of the maximum 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)taxes. In the event The parties agree that the payments required to be made under this Section 6 are such that the payments Employee receives, or is entitled to receive, under this Section 6 shall not be reduced by any 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 or Gross-Up Payment attributable to such reduction (plus that portion of with respect thereto and therefore the Gross-Up Payment attributable to the net amount retained by Employee, after reimbursement for any Excise Tax, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the portion of 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 or any other federal, state or local income taxes) plus interest or other tax that may be payable on the amount receipt of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event reimbursement for Excise Tax, 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 imposed as a result of any payment required to be made under this Section 6 shall be equal to the existence same amount as if no such Excise Tax or amount of which cannot be determined at the time other tax had been imposed. All other rights and obligations of the Gross-Up Payment)Company and Employee under this Agreement (other than Sections 8, 9 and 10, which shall survive termination) shall cease as of the Company shall make an additional Gross-Up Payment, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedTermination Date.

Gross-Up Payment. (a) In the event that the Executive becomes entitled to the any Severance Benefits Payments paid or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay payable to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 or 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 his benefit pursuant to the terms of this Agreement or any other agreement, plan or arrangement otherwise in connection with the Company, any Person whose actions result in a Change in Control (“Total Payments”) would be subject to any Excise Tax, then the Executive will be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after the Executive’s payment of all taxes (including any interest, penalties, additional tax, or similar items imposed with respect to the Gross-Up Payment and the Excise Tax), including any Person affiliated with Excise Tax upon the Company or such Person) shall be treated as "parachute payments" within Gross-Up Payment, the meaning of Section 280G(b)(2) Executive retains an amount of the Cod, and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject Gross-Up Payment equal to the Excise Tax, unless in Tax imposed upon the opinion Total Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of tax counsel ("Tax Counsel") that Gross-Up Payment will be made at the Company’s expense by an Accounting Firm selected by the Executive and reasonably acceptable to the Company's independent auditors . The Accounting Firm will provide its determination, together with detailed supporting calculations and documentation, to the Company and the Executive within 10 business days after the Date of Termination, or such other time as requested by the Company and the Executive. If the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Payments, it will furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to the Payments. Within 10 business days after the Accounting Firm delivers its determination to the Executive, such other payments or benefits (the Executive will have the right to dispute the determination. The Gross-Up Payment, if any, as determined by the Accounting Firm in whole or in part) do not constitute parachute paymentsaccordance with the preceding provisions of this Section, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered will be paid by the Company to the Executive within the meaning of Section 280G(b)(4) 5 business days of the Code in excess receipt of the Base AmountAccounting Firm’s determination. The existence of a dispute will not in any way affect the Executive’s right to receive the Gross-Up Payment in accordance with the determination. If there is no dispute, or are otherwise the determination will be final, binding, and conclusive upon the Company and the Executive. If there is a dispute, then the Company and the Executive will together select a second Accounting Firm, which will review the determination and the Executive’s basis for the dispute and then render its own determination, which will be final, binding, and conclusive on the Company and the Executive. The Company will bear all costs associated with that determination, unless the determination is not subject to greater than the Excise Taxinitial determination, (ii) the amount of the Total Benefits in which shall case all such costs will be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Benefits reduced borne by the amount of such Total Benefits that in the opinion of Tax Counsel are not parachute payments, or Executive. (Bc) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i), above), and (iii) the The value of any non-cash benefits or any deferred payment or benefit shall paid or payable to the Executive will be determined by the Company's independent auditors in accordance with the principles of sections Code section 280G(d)(3) and (4) of the Code). For purposes of determining the amount of the Gross-Up Payment, the Executive shall will be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and applicable state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's ’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could that would be obtained from deduction of such those state and local taxes taxes. (calculated by assuming that any reduction under Section 68 of d) Notwithstanding anything contained in this Agreement to the Code contrary, in the event that, according to the Accounting Firm’s determination, an Excise Tax will be imposed on the Total Payments, the Company will pay to the applicable government taxing authorities as Excise Tax withholding 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 that the amount taken into account hereunder at Company has actually withheld from the time Total Payments in accordance with applicable law. (e) Notwithstanding the preceding provisions of termination of the Executive's employmentthis Section 3.03, the Executive shall repay Company will not have any obligation to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of make the Gross-Up Payment attributable unless the value of the Total Payments exceeds 110% of the maximum amount of parachute payments that could be paid to such reduction the Executive without any imposition of golden parachute excise taxes under Code sections 280G and 4999 (plus the “110% Amount”). In that case, the value of the Total Payments will be reduced to the extent necessary so that, within the meaning of Code section 280G(b)(2)(A)(ii), the aggregate present value of the payments in the nature of compensation to (or for the benefit of) the Executive that are contingent on a Change in Control (with a Change in Control for this purpose being defined in terms of a “change” described in Code section 280G(b)(2)(A)(i) or (ii)), do not exceed 2.999 multiplied by the Base Amount. For this purpose, cash Severance Payments will be reduced first (if necessary, to zero), and all other, non-cash Severance Payments will be reduced next (if necessary, to zero). For purposes of the limitation described in the preceding sentence, the following will not be taken into account: (1) any portion of the Gross-Up Payment attributable Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Excise TaxDate of Termination, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the (2) any portion of the GrossTotal Payments that, in the opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of Code section 280G(b)(2). (f) For purposes of this Section 3.03, the value of any non-Up Payment being repaid cash benefit or any deferred payment or benefit included in the Total Payments will be determined by the Executive to Accounting Firm in accordance with the extent that such repayment results in a reduction in Excise Tax, FICA principles of Code sections 280G(d)(3) and Medicare withholding taxes and/or federal, state or local income taxes) 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 Payment4), the Company shall make an additional Gross-Up Payment, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined.

Gross-Up Payment. In the event that (i) the Executive Employee becomes ----------------- entitled to the Severance Benefits or any other benefits or payments provided under Section 10.2 of this Agreement (other than pursuant to this Sectionthe "Change in Control Payments") by reason and any of the accelerated vesting of stock options thereunder Change in Control Payments will be subject to the tax (together, the "Total BenefitsExcise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), and in or any successor provision, or (ii) any payments or benefits received or to be received by the event that Employee pursuant to the terms of any of other plan, arrangement or agreement (the Total Benefits "Benefit Payments") will be subject to the Excise Tax, the Company shall pay to the Executive Employee an additional amount (the "Gross-Up Payment") such that the net amount retained by the ExecutiveEmployee, after deduction of any Excise Tax on the Total Benefits Change in Control Payments and the Benefit Payments, and any federal, state and local income tax, tax and Excise Tax and FICA and Medicare withholding taxes upon the payment provided for by this SectionSection 10.3, shall be equal to the Total BenefitsChange in Control Payments and the Benefit Payments, provided, however, that in determining the amount of the Gross-Up Payment, any Excise Tax on the Change in control Payments and the Benefit Payments shall be determined using a rate no higher than 20%. For purposes of determining whether any of the Total Benefits Change in Control Payments or the Benefit 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 Employee in connection with a Change change in Control control of the Company or the ExecutiveEmployee's termination of employment (whether pursuant to the terms of this Agreement agreement or any other agreementplan, plan arrangement or arrangement agreement with the Company, any Person person whose actions result in a Change change in Control control or any Person person affiliated with the Company or such Personpersons) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2280G(b) (2) of the CodCode, and all "excess parachute payments" within the meaning the of Section 280G(b)(1280G(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, Employee 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)(4280G(b) 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 portion of 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 federal, state or local income taxesii) 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, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined.the

Gross-Up Payment. (a) In the event that the Executive becomes entitled to the or receives Severance Benefits or any other benefits payment or payments benefit under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (togetherAgreement, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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) or under 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 plan, agreement, plan or arrangement with the Company, or with any Person whose actions result in a Change in Control CIC of the Company or any Person affiliated with the Company or such PersonPersons (the “Total Payments”) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) and any of the Cod, and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall Total Payments will be treated as subject to the Excise Tax, unless in the opinion of any excise tax counsel ("Tax Counsel") selected by the Company's independent auditors and acceptable pursuant 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) 4999 of the Code in excess of or any similar or successor provision (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 portion of 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 federal, state or local income taxes) 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 lump-sum cash payment to the Executive (the “Gross-Up Payment”) in an amount such that the net amount retained by the Executive from the Total Payments, after deduction of (i) the Excise Tax on the Total Payments and (ii) any federal, state, or local income or employment tax and Excise Tax imposed on the Gross-Up Payment but before deduction for any federal, state, or local income or employment tax withholding on the Total Payments, shall be equal to the Total Payments. The CIC Tier I US Gross-Up Payment, determined as previously describedif any, shall be made by the Company to the Executive in respect to such excess (plus any interest, penalties or additions payable by the end of the Executive’s taxable year that immediately follows the Executive’s taxable year in which the related Excise Tax on the Total Payments is remitted to the relevant taxing authorities; (b) Notwithstanding anything to the contrary in this Agreement, if any of the Total Payments would otherwise be subject to the Excise Tax and the aggregate present value of Executive’s Total Payments that are taken into account for purposes of determining whether any of the Total Payments will be subject to the Excise Tax (as determined in accordance with Section 280G of the Code) would otherwise exceed the Executive’s Cap Amount (as defined in this Section 6.1(b)) by ten thousand dollars ($10,000) or less, then the Company shall reduce the Executive’s Total Payments to the minimum amount necessary to prevent any of the Total Payments from being subject to the Excise Tax. If the Company is required to reduce the Executive’s Total Payments pursuant to this Section 6.1(b), the Company will not be required to make a Gross-Up Payment to the Executive with respect pursuant to such excessSection 6.1(a) at and shall first reduce the time that amounts otherwise payable to the Executive under Section 4.3(a), 4.3(b) or 4.3(d). If, after the Company reduces the amounts otherwise payable to the Executive under Sections 4.3(a), 4.3(b) and 4.3(d), any of the Executive’s remaining Total Payments would still be subject to the Excise Tax, the Committee shall determine the manner in which the remaining Total Payments will be reduced. For purposes of this Agreement, the term “Cap Amount” means an amount equal to the Executive’s base amount (within the meaning of such excess is finally determinedSection 280G of the Code), multiplied by three (3).

Gross-Up Payment. In the event that If any 280G Payment to or in respect of the Executive becomes entitled is determined to the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to then the Executive shall be entitled to receive an additional amount payment (“the "“Gross-Up Payment"”) in an amount such that the net amount retained by the Executivethat, after 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 of all taxes (and any interest or penalties imposed with a Change in Control or the Executive's termination of employment (whether pursuant respect to the terms of this Agreement or any other agreementsuch taxes), plan or arrangement with the Companyincluding, without limitation, any Person whose actions result in a Change in Control or income taxes (and any Person affiliated interest and penalties imposed with the Company or such Personrespect thereto) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, and all "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") 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 imposed upon the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate retains an amount of federal income taxation in the calendar year in which the Gross-Up Payment is equal to the Excise Tax imposed upon the 280G Payments. The Accounting Firm shall make all determinations required to be made under this Section 7(a), including whether 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 Terminationwhen a Gross-Up Payment is required, 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 any such Gross-Up Payment and the assumptions to be utilized in arriving at such determination (except that the Executive applies first to reduce the amount of such Executive’s Federal and state and local income taxes that would otherwise shall be deductible assumed to be at the maximum marginal rates). All fees and expenses of the Accounting Firm shall be borne solely by the Executive)Company. 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 An allocable portion of the Gross-Up Payment, computed assuming all of the 280G Payments constitute excess parachute payments under, and allocated to each payment in accordance with, Section 280G of the Code, shall be paid to the Executive concurrently with each 280G Payment, unless the Company at the same time as such 280G Payment attributable provides the Executive with the Accounting Firm’s opinion that the Executive will not incur any Excise Tax on any part or all of the 280G Payments. Any such opinion shall be based upon the regulations under Sections 280G and 4999 of the Code and shall be supported with substantial authority as defined in Section 6661 of the Code and the regulations thereunder. If any such opinion applies only to such reduction (plus that portion part of the 280G Payments, the Company shall pay the Executive the Gross-Up Payment attributable with respect to that part of the Payments not covered by the opinion. The Executive agrees (unless requested otherwise by the Company) to use reasonable efforts to contest in good faith any subsequent determination by the Internal Revenue Service that the Executive owes an amount of Excise TaxTax greater than the amount determined above; provided, federal, state that the Executive shall be entitled to reimbursement by the Company of all fees and local income taxes and FICA and Medicare withholding taxes imposed on expenses reasonably incurred by the portion Executive in contesting such determination. In the event the Internal Revenue Service or any court of competent jurisdiction determines that the Executive owes an amount of Excise Tax that is either greater or less than the amount previously taken into account in the Gross-Up Payment being repaid by paid under this Section 7(a), the Company shall promptly pay to the Executive, or the Executive shall promptly repay to the extent that such repayment results in a reduction in Excise TaxCompany, FICA and Medicare withholding taxes and/or federalas the case may be, state or local income taxes) plus interest on the amount of such repayment at the rate provided resulting excess or shortfall 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), . Any payment that the Company shall is required to make an additional Gross-Up Payment, determined as previously described, to the Executive in respect pursuant to the preceding sentence shall include an additional amount such excess (plus any interest, penalties or additions payable that after payment by the Executive of all of the Executive’s applicable Federal, state and local taxes (and any interest or penalties imposed with respect to such excesstaxes) at on such additional amount, the time that Executive shall retain an amount equal to the amount total of such excess is finally determinedthe Executive’s applicable Federal, state and local taxes arising due to the later 280G Payment. Payment of any Gross-Up Payment shall in any event be made by December 31 following the taxable year in which the related Excise Tax was incurred.

Gross-Up Payment. In the event that the Executive becomes entitled Notwithstanding anything to the Severance Benefits or any other benefits or payments under contrary in this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (togetherAgreement, the "Total Benefits"), and in the event that if any of the Total Benefits will payments or benefits which the Executive has the right to receive from the Corporation (the “Payments”) are later determined to be subject to the Excise tax imposed by Section 409A of the Code, or any interest or penalties with respect to such tax (such tax, together with any such interest or penalties, are hereinafter collectively referred to as the “409A Tax”), the Company Corporation shall pay to the Executive an additional amount payment (the "a “Gross-Up up Payment"”) in an amount such that the net amount retained by the Executive, after 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 of all taxes (including any interest or penalties imposed with a Change in Control or the Executive's termination of employment (whether pursuant respect 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 Cod, and all "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") 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 (itaxes), above)including any income tax imposed on any Gross-up Payment, 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 Executive retains an amount of the Gross-Up Payment, up Payment equal to the Executive 409A Tax imposed upon the Payments. The Compensation Committee shall be deemed make an initial determination as to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the whether a Gross-Up up Payment is to be made required 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 any such Gross-up Payment. The Executive shall notify the Corporation immediately in writing of any claim by the Internal Revenue Service which, if successful, would require the Corporation to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by the Executive applies first to reduce Compensation Committee) within five days of the amount receipt of such state and local income taxes that would otherwise be deductible by the Executive)claim. 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 The Corporation 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 portion of 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 federal, state or local income taxes) 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, determined as previously described, to notify the Executive in respect writing at least five days prior to such excess (plus the due date of any interest, penalties or additions payable by the Executive response required with respect to such excessclaim if it plans to contest the claim. If the Corporation decides to contest such claim, then the Executive shall cooperate fully with the Corporation in such action; provided, however, the Corporation shall bear and pay all costs and expenses (including additional interest and penalties) at incurred in connection with such action and shall indemnify and hold the time that Executive harmless, on an after-tax basis, for any 409A Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Corporation’s action. If, as a result of the Corporation’s action with respect to a claim, the Executive receives a refund of any amount paid by the Corporation with respect to such claim, then the Executive shall promptly pay such refund to the Corporation. If the Corporation fails to timely notify the Executive whether it will contest such claim or the Corporation determines not to contest such claim, then the Corporation shall immediately pay to the Executive the portion of such excess is finally determinedclaim, if any, which it has not previously paid to the Executive.

Gross-Up Payment. In the event that If the Executive becomes entitled to the Severance Benefits or any other payments and benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 following a Change in Control under Section 6(f) or the vesting of any stock options held by the Executive accelerate following a Change in Control pursuant to any stock option agreement or certificate, whether entered into on or after the date hereof, the Parent Corporation will cause its independent auditors promptly to review, at the Company’s sole expense, the applicability of Code Section 4999 to any payment or distribution of any type by the Company to or for the Executive's termination of employment (’s benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, any stock option agreement or otherwise (the “Total Payments”). If the auditor determines that the Total Payments result in an excise tax imposed by Code Section 4999 or any other agreementcomparable state or local law, plan or arrangement with the Company, any Person whose actions result in a Change in Control or any Person affiliated 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 “Excise Tax”), the Company or such Personwill make an additional cash payment (a “Gross-Up Payment”) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject to the Executive within 10 days after such determination equal to an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any 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 imposed upon 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 would retain an 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 equal to such reduction (plus that portion the Excise Tax imposed upon the Total Payments. For purposes of the foregoing determination, the Executive’s tax rate will be deemed to be the highest statutory marginal state and federal tax rate (on a combined basis) then in effect. If no determination by the Company’s auditors is made prior to the time the Executive is required to file a tax return reflecting the Total Payments, the Executive will be entitled to receive from the Company a Gross-Up Payment attributable calculated on the basis of the Excise Tax the Executive reported in such tax return, within 10 days after the later of the date on which the Executive files such tax return or the date on which the Executive provides a copy thereof to the Company. In all events, if any tax authority determines that a greater Excise TaxTax should be imposed upon the Total Payments than is determined by the Company’s independent auditors or reflected in the Executive’s tax return pursuant to this Section 6(g), federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the portion of Executive will be entitled to receive from the Company the full Gross-Up Payment being repaid by calculated on the Executive to the extent that such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) plus interest on basis of 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 be payable by such tax authority within 10 days after 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), Executive notifies the Company shall make an additional Gross-Up Payment, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determineddetermination.

Gross-Up Payment. In the event that (i) the Executive Employee becomes entitled to the Severance Benefits or any other benefits or payments payment provided under Section 10.2 of this Agreement (other than pursuant to this Sectionthe "Change in Control Payment") by reason and any of the accelerated vesting of stock options thereunder Change in Control Payment will be subject to the tax (together, the "Total BenefitsExcise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), and in or any successor provision, or (ii) any payments or benefits received or to be received by the event that Employee pursuant to the terms of any of other plan, arrangement or agreement (the Total Benefits "Benefit Payments") will be subject to the Excise Tax, the Company shall pay to the Executive Employee an additional amount (the "Gross-Up Payment") such that the net amount retained by the ExecutiveEmployee, after deduction of any Excise Tax on the Total Benefits Change in Control Payment and the Benefit Payments, and any federal, state and local income tax, tax and Excise Tax and FICA and Medicare withholding taxes upon the payment provided for by this SectionSection 10.3, shall be equal to the Total BenefitsChange in Control Payment and the Benefit Payments, provided, however, that in determining the amount of the Gross- Up Payment, any Excise Tax on the Change in Control Payment and the Benefit Payments shall be determined using a rate no higher than twenty percent (20%). For purposes of determining whether any of the Total Benefits Change in Control Payment or the Benefit 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 Employee in connection with a Change change in Control control of the Company or the ExecutiveEmployee's termination of employment (whether pursuant to the terms of this Agreement or any other agreementplan, plan arrangement or arrangement agreement with the Company, any Person person whose actions result in a Change change in Control control or any Person person affiliated with the Company or such Personpersons) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the CodCode, and all "excess parachute payments" within the meaning the of Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless except to the extent that, in the opinion of tax counsel ("Tax Counsel") selected by the Board of Directors of 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 TaxCode, (ii) the amount of the Total Benefits which Change in Control Payment and the Benefit Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Change in Control Payment and the Benefits reduced by the amount of such Total Benefits that in the opinion of Tax Counsel are not parachute payments, Payments or (B) the amount of excess parachute payments within the meaning of Section Sections 280G(b)(1) and (4) (after applying clause (i), above), ) and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by tax counsel, selected by the Board of Directors of the Company's independent auditors , in accordance with the principles of sections Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate rates of taxation in the state and locality of the ExecutiveEmployee's residence on the Date date of Terminationtermination, net of the maximum 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)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 the ExecutiveEmployee's employment, the Executive Employee shall repay to the Company, Company at the that time that the amount of such reduction in Excise Tax as is finally determined, determined to be 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 portion of 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 federal, state or local income taxes) 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 ExecutiveEmployee'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 Grossgross-Up Payment, determined as previously described, up payment to the Executive Employee in respect to of such excess (plus any interest, penalties or additions interest payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined.

Gross-Up Payment. In the event that (i) the Executive becomes entitled to the Severance Benefits or any other payment and benefits or payments provided under Section 1 of this Agreement (other than pursuant to this Sectionthe “Change of Control Payment”) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits Change of Control Payment will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision, or (ii) any payments or benefits received or to be received by the Executive pursuant to the terms of any other plan, arrangement or agreement (the “Benefit Payments”) will be subject to the Excise Tax, the Company Employer shall pay to the Executive an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Benefits Change of Control Payment and the Benefit Payments, and any federal, state and local income tax, tax and Excise Tax and FICA and Medicare withholding taxes upon the payment provided for by this SectionSection 3, shall be equal to the Total BenefitsChange of Control Payment and the Benefit Payments; provided, however, that in determining the amount of the Gross-Up Payment, any Excise Tax on the Change of Control Payment and the Benefit Payments shall be determined using a rate no higher than twenty percent (20%). For purposes of determining whether any of the Total Benefits Change of Control Payment or the Benefit 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 change in Control control of the Employer or the Executive's ’s termination of employment (whether pursuant to the terms of this Agreement or any other agreementplan, plan arrangement or arrangement agreement with the CompanyEmployer, any Person person whose actions result in a Change change in Control control or any Person person affiliated with the Company Employer or such Personpersons) shall be treated as "“parachute payments" ” within the meaning of Section 280G(b)(2) of the CodCode, and all "“excess parachute payments" ” within the meaning the of Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless except to the extent that, in the opinion of tax counsel ("Tax Counsel") selected by the Company's independent auditors and acceptable to Board of Directors of the ExecutiveEmployer, 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, Code; (ii) the amount of the Total Benefits which Change of Control Payment and the Benefit Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Change of Control Payment and the Benefits reduced by the amount of such Total Benefits that in the opinion of Tax Counsel are not parachute payments, Payments or (B) the amount of excess parachute payments within the meaning of Section Sections 280G(b)(1) and (4) (after applying clause (i), above), and ; and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by tax counsel, selected by the Company's independent auditors Board of Directors of the Employer, in accordance with the principles of sections 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 rates of taxation in the state and locality of the Executive's ’s residence on the Date date of Terminationtermination, net of the maximum 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)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 the Executive's ’s employment, the Executive shall repay to the Company, Employer at the that time that the amount of such reduction in Excise Tax as is finally determined, determined to be 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 portion of 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 federal, state or local income taxes) 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 ’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 Employer shall make an additional Grossgross-Up Payment, determined as previously described, up payment to the Executive in respect to of such excess (plus any interest, penalties or additions interest payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined.

Gross-Up Payment. In the event that the If Executive becomes entitled to payments in the Severance Benefits or any other nature of compensation, including without limitation the Change in Control Payment described in Section 3.6 of the Agreement, all wages and salary, bonuses, severance pay, fringe benefits or payments under this Agreement (other than pursuant to this Section) by reason of and the accelerated vesting of stock options thereunder or other equity-based compensation (togetherincluding any accelerated vesting of options as described in Section 7.2 of the Incentive Plan) that constitute a "parachute payment" under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor statute then in effect (collectively, the "Total BenefitsAggregate Change in Control Payments"), and in the event that any of the Total Benefits will be subject to the Excise Tax, then the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such to Executive at the time specified in the following paragraph. The Gross-Up Payment shall be equal to the amount necessary so that the net amount of the Aggregate Change in Control Payments retained by the Executive, after deduction subtracting the parachute excise tax imposed by Section 4999 of the Code, as amended, or any successor statute then in effect (the "Excise Tax"), and after also subtracting all federal, state or local income tax, FICA tax and 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 SectionGross-Up Payment, shall be equal to the Total Benefits. For purposes of determining whether any net amount 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 Aggregate 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 Cod, and all "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") 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 Payments that Executive would have retained if no 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), had been imposed and (iii) the value of any nonno Gross-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 CodeUp Payment had been paid. For purposes of determining the The amount of the Gross-Up PaymentPayment shall be determined in good faith by independent accountants or tax counsel selected by the Company and acceptable to Executive, who shall apply the following assumptions: (i) Executive shall be deemed to pay treated as paying federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to made, and (ii) Executive shall be made and treated as paying state and local income taxes at the highest marginal rate of taxation rate(s) in the state and calendar year in which the Gross-Up Payment is made in the locality of the Executive's residence on as of the Date effective date of TerminationExecutive's termination or resignation, net of the maximum reduction in federal income taxes which that could be obtained from deduction of such deducting those state and local taxes (calculated by assuming that any reduction under Section 68 taxes. The Gross-Up Payment shall be made within five business days after the effective date 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 employmenttermination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Executive shall repay to within that time an estimate, determined in good faith by the Company, at of the time that the minimum amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction and shall pay the remainder (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 portion of 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 federal, state or local income taxes) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but in no event later than the 30th day after the effective date of Executive's termination or resignation. In If the event that estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Executive within five business days after written demand. If the actual Excise Tax imposed is determined to exceed more than the amount that was taken into account hereunder at in determining 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 Grossgross-Up Payment, determined as previously described, to the Executive up payment in respect to of such excess (plus any interest, penalties or additions payable by interest at the Executive with respect to such excessrate provided in Section 1274(b)(2)(B) of the Code) at the time that the amount of such the excess is finally determined." 3. This Amendment shall be construed and enforced in accordance with the laws and decisions of the State of California. 4. Except as specifically modified by this Amendment, all provisions of the Agreement shall remain in full force and effect. 5. In the event of any inconsistency between the provisions of this Amendment and any provision in the Agreement, the terms and provisions of this Amendment shall govern. 6. This Amendment may be executed in identical counterpart copies, each of which shall be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by facsimile transmission shall be effective as delivery of a manually executed counterpart of this Amendment.

Gross-Up Payment. In the event that If any 280G Payment to or in respect of the Executive becomes entitled is determined to the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to then the Executive shall be entitled to receive an additional amount payment (the "“Gross-Up Payment"”) in an amount such that the net amount retained by the Executivethat, after 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 of all taxes (and any interest or penalties imposed with a Change in Control or the Executive's termination of employment (whether pursuant respect to the terms of this Agreement or any other agreementsuch taxes), plan or arrangement with the Companyincluding, without limitation, any Person whose actions result in a Change in Control or income taxes (and any Person affiliated interest and penalties imposed with the Company or such Personrespect thereto) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, and all "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") 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 imposed upon the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate retains an amount of federal income taxation in the calendar year in which the Gross-Up Payment is equal to the Excise Tax imposed upon the 280G Payments. The Accounting Firm shall make all determinations required to be made under this Section 7(a), including whether 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 Terminationwhen a Gross-Up Payment is required, 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 any such Gross-Up Payment and the assumptions to be utilized in arriving at such determination (except that the Executive applies first to reduce the amount of such Executive’s Federal and state and local income taxes that would otherwise shall be deductible assumed to be at the maximum marginal rates). All fees and expenses of the Accounting Firm shall be borne solely by the Executive)Company. 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 An allocable portion of the Gross-Up Payment, computed assuming all of the 280G Payments constitute excess parachute payments under, and allocated to each payment in accordance with, Section 280G of the Code, shall be paid to the Executive concurrently with each 280G Payment, unless the Company at the same time as such 280G Payment attributable provides the Executive with the Accounting Firm’s opinion that the Executive will not incur any Excise Tax on any part or all of the 280G Payments. Any such opinion shall be based upon the regulations under Sections 280G and 4999 of the Code and shall be supported with substantial authority as defined in Section 6661 of the Code and the regulations thereunder. If any such opinion applies only to such reduction (plus that portion part of the 280G Payments, the Company shall pay the Executive the Gross-Up Payment attributable with respect to that part of the Payments not covered by the opinion. The Executive agrees (unless requested otherwise by the Company) to use reasonable efforts to contest in good faith any subsequent determination by the Internal Revenue Service that the Executive owes an amount of Excise TaxTax greater than the amount determined above; provided, federal, state that the Executive shall be entitled to reimbursement by the Company of all fees and local income taxes and FICA and Medicare withholding taxes imposed on expenses reasonably incurred by the portion Executive in contesting such determination. In the event the Internal Revenue Service or any court of competent jurisdiction determines that the Executive owes an amount of Excise Tax that is either greater or less than the amount previously taken into account in the Gross-Up Payment being repaid by paid under this Section 7(a), the Company shall promptly pay to the Executive, or the Executive shall promptly repay to the extent that such repayment results in a reduction in Excise TaxCompany, FICA and Medicare withholding taxes and/or federalas the case may be, state or local income taxes) plus interest on the amount of such repayment at the rate provided resulting excess or shortfall 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), . Any payment that the Company shall is required to make an additional Gross-Up Payment, determined as previously described, to the Executive in respect pursuant to the preceding sentence shall include an additional amount such excess (plus any interest, penalties or additions payable that after payment by the Executive of all of the Executive’s applicable Federal, state and local taxes (and any interest or penalties imposed with respect to such excesstaxes) at on such additional amount, the time that Executive shall retain an amount equal to the amount total of such excess is finally determinedthe Executive’s applicable Federal, state and local taxes arising due to the later 280G Payment. Payment of any Gross-Up Payment shall in any event be made by December 31 following the taxable year in which the related Excise Tax was incurred.

Gross-Up Payment. In the event that any payment or distribution by the Company to or for the benefit of the Executive becomes entitled to the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any other agreement, plan or arrangement with the Company, any Person whose actions result in additional payments required under this Section 11.11) (a Change in Control or any Person affiliated with the Company or such Person"Payment") shall would be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any interest or penalties are incurred by the Executive with respect to such excise tax (collectively, the "Excise Tax"), unless in then the opinion of tax counsel Executive will be entitled to receive an additional payment (a "Tax CounselGross-Up Payment") selected in an amount such that after payment by the Company's independent auditors Executive of all taxes (including any income taxes and acceptable interest or penalties imposed with respect to the Executive, such other payments or benefits (in whole or in parttaxes) 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 and 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 imposed on 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 retains an 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 equal to the Excise Tax imposed on the Payments. All determinations required to be made under this Section 11.11, including whether and when a Gross-Up Payment is required and the amount of such reduction Gross-Up Payment, will be made by the independent accounting firm of the Company immediately prior to the Executive's termination of employment (plus the "Accounting Firm"). All fees and expenses of the Accounting Firm will be borne solely by the Company, and any determination by the Accounting Firm will be binding upon the Company and the Executive. Any Gross-Up Payment, as determined pursuant to this Section 11.11), will be paid by the Company to the Executive within ten (10) days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that portion no Excise Tax is payable by the Executive, it shall so indicate to the Executive in writing. In the event there is an under-payment of the Gross-Up Payment attributable due to the Excise Tax, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on uncertainty in the portion application of Section 4999 of 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 federal, state or local income taxes) 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 Code at the time of the termination initial determination by the Accounting Firm and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will determine the amount of any such under-payment that has occurred and such amount will be promptly paid by the Company to or for the benefit of the Executive's employment (including by reason . Notwithstanding anything contained in this Section 11.11 to the contrary, if the present value of any payment the existence or amount of which cannot be determined at the time of payments made under this Article 11, without taking into account the Gross-Up Payment, is no greater than one hundred and ten percent (110%) of the amount payable to the Executive assuming the Executive's payments under this Agreement were limited ot the maximum amount that could be payable without application of the excise tax imposed by Section 4999 of the Internal Revenue Code (the "Section 4999 Limit"), the Company Executive's payments hereunder shall make an additional Gross-Up Payment, determined as previously described, be limited to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedSection 4999 Limit.

Gross-Up Payment. In a. To the event extent that the Executive becomes entitled to the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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) the payment of any Severance Payment under Paragraph 18 of this Agreement, (ii) vesting under the applicable Restricted Stock Agreements provided under Paragraph 6 of this Agreement, or (iii) the payment of 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" benefit within the meaning of Section 280G(b)(2) 280G of the CodInternal Revenue Code of 1986, as amended (the “Code”) under any other agreement (collectively, “Payments”) would result in any taxes being imposed against Executive under Section 4999 of the Code (the “Excise Tax”), then the Company shall pay, and all "excess parachute payments" within Executive will be entitled to receive, a payment (the meaning the Section 280G(b)(1“Gross-Up Payment”) shall be treated as subject in an amount equal to the such Excise Tax, unless plus an amount as shall be required to hold Executive harmless from any tax liability relating to the payment of such Gross-Up Payment. To the extent Executive incurs any interest or penalties with respect to such Excise Tax (other than interest and penalties due to Executive’s failure to timely make any applicable election, file a tax return or pay taxes shown on his return) (the “Expenses”), then the Company shall reimburse Executive for such Expenses within five (5) days after Executive incurs such Expenses. This reimbursement obligation shall remain in effect during the opinion applicable statute of tax counsel ("Tax Counsel") selected limitations applicable to any such Expenses, and the amount of Expenses eligible for reimbursement during any taxable year of Executive will not affect the amount of Expenses eligible for reimbursement in any other taxable year of Executive. This right to reimbursement is not subject to liquidation or exchange for another benefit. To the extent the reimbursement by the Company's independent auditors and acceptable Company of any Expenses is taxable to the Executive, such other payments or benefits (taxable amount shall be subject to an additional Gross-Up Payment in whole or an amount equal to such tax liability plus an amount as shall be required to hold Executive harmless from any tax liability relating to the payment of such Gross-Up Payment. b. The Company shall bear any expense necessary 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)(4determining whether a Gross-Up Payment is required pursuant to Paragraph 22(a) 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 Codethis Agreement. For purposes of determining the amount of the The Gross-Up Payment, the Executive if any, 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 paid by the Executive). In the event that the Excise Tax is subsequently determined Company 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 within five (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 portion of the Gross-Up Payment being repaid 5) days after remittance by the Executive to the extent that such repayment results in a reduction in Internal Revenue Service of the applicable Excise Tax, FICA Tax and/or taxes related to the reimbursement and Medicare withholding taxes and/or federal, state or local income taxes) plus interest on the amount submission to the Company of appropriate documentation 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 remittance as may be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable required by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedCompany.

Gross-Up Payment. In Notwithstanding anything else in this Agreement, if it is found that any or all of the event that payments made to Executive, including but not limited to payments made by the Company, or under any plan or arrangement maintained by the Company, to Executive becomes entitled to the Severance Benefits or any other benefits or payments under this Agreement for Executive’s benefit (other than pursuant to any additional payments required under this Section) by reason of the accelerated vesting of stock options thereunder Section 8) (together, the "Total BenefitsPayments"), and in the event that any of the Total Benefits will ) would be subject to the excise tax imposed by Section 4999 of the Code or Executive incur any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, collectively the "Excise Tax"), the Company shall pay then Executive is entitled to the Executive receive an additional amount payment (the a "Gross-Up Payment") in an amount such that the net amount retained by the Executivethat, after deduction of Executive pays 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 Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Tax and FICA and Medicare withholding taxes imposed upon the payment provided for by this SectionGross-Up Payment, shall be equal to the Total Benefits. For purposes of determining whether any of the Total Benefits Executive 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 Cod, and all "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") 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 retain an amount of the Gross-Up Payment, Payment equal to the Executive shall be deemed to pay federal income taxes at Excise Tax imposed upon the highest marginal rate Payments. The procedures for the calculation and contesting of federal income taxation any claim that such Excise Tax is due are set forth in the calendar Addendum. The following provisions shall apply to the calculation and procedures relating to the Gross-Up Payment: 8.1 The Company's independent auditors in the fiscal year in which the Change of Control occurs (the "Accounting Firm") shall determine Whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be used in making such determination. The Accounting Firm shall provide detailed supporting calculations, together with a written opinion with respect to the accuracy of such calculations, to Executive and the Company within 15 business days of the receipt of a written request from either Executive or the Company. If the Accounting Firm is serving (or has served Within the three years preceding the Change in Control) as accountant or auditor for the person in control of the Company following the Change of Control or any affiliate thereof, Executive may appoint another nationally recognized accounting firm to make the determinations required in connection with the Gross-Up Payment is and the substitute accounting firm shall then be referred to be made and state and local income taxes at as 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 ExecutiveAccounting Firm). 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 portion of 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 federal, state or local income taxes) 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 The Company shall make an additional pay Executive any Gross-Up Payment, determined as previously describedin accordance with this Addendum, within five days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that Executive will not be liable for any Excise Tax, it shall furnish Executive with a written opinion that Executive’s failure to report the Executive Excise Tax on the applicable federal income tax return would not result in respect to such excess (plus any interest, penalties the imposition of a negligence or additions payable similar penalty. Any determination by the Accounting Firm shall be binding upon Executive with respect to such excess) at and the time that the amount of such excess is finally determinedCompany.

Gross-Up Payment. (a) In the event that the Executive becomes entitled to the any Severance Benefits Payments paid or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay payable to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 or 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 his benefit pursuant to the terms of this Agreement or any other agreement, plan or arrangement otherwise in connection with the Company, any Person whose actions result in a Change in Control (“ Total Payments”) would be subject to any Excise Tax, then the Executive will be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after the Executive’s payment of all taxes (including any interest, penalties, additional tax, or similar items imposed with respect to the Gross-Up Payment and the Excise Tax), including any Person affiliated with Excise Tax upon the Company or such Person) shall be treated as "parachute payments" within Gross-Up Payment, the meaning of Section 280G(b)(2) Executive retains an amount of the Cod, and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject Gross-Up Payment equal to the Excise Tax, unless in Tax imposed upon the opinion Total Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of tax counsel ("Tax Counsel") that Gross-Up Payment will be made at the Company’s expense by an Accounting Firm selected by the Executive and reasonably acceptable to the Company's independent auditors . The Accounting Firm will provide its determination, together with detailed supporting calculations and documentation, to the Company and the Executive within 10 business days after the Date of Termination, or such other time as requested by the Company and the Executive. If the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Payments, it will furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to the Payments. Within 10 business days after the Accounting Firm delivers its determination to the Executive, such other payments or benefits (the Executive will have the right to dispute the determination. The Gross-Up Payment, if any, as determined by the Accounting Firm in whole or in part) do not constitute parachute paymentsaccordance with the preceding provisions of this Section, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered will be paid by the Company to the Executive within the meaning of Section 280G(b)(4) 5 business days of the Code in excess receipt of the Base AmountAccounting Firm’s determination. The existence of a dispute will not in any way affect the Executive’s right to receive the Gross-Up Payment in accordance with the determination. If there is no dispute, or are otherwise the determination will be final, binding, and conclusive upon the Company and the Executive. If there is a dispute, then the Company and the Executive will together select a second Accounting Firm, which will review the determination and the Executive’s basis for the dispute and then render its own determination, which will be final, binding, and conclusive on the Company and the Executive. The Company will bear all costs associated with that determination, unless the determination is not subject to greater than the Excise Taxinitial determination, (ii) the amount of the Total Benefits in which shall case all such costs will be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Benefits reduced borne by the amount of such Total Benefits that in the opinion of Tax Counsel are not parachute payments, or Executive. (Bc) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i), above), and (iii) the The value of any non-cash benefits or any deferred payment or benefit shall paid or payable to the Executive will be determined by the Company's independent auditors in accordance with the principles of sections Code section 280G(d)(3) and (4) of the Code). For purposes of determining the amount of the Gross-Up Payment, the Executive shall will be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and applicable state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's ’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could that would be obtained from deduction of such those state and local taxes taxes. (calculated by assuming that any reduction under Section 68 of d) Notwithstanding anything contained in this Agreement to the Code contrary, in the event that, according to the Accounting Firm’s determination, an Excise Tax will be imposed on the Total Payments, the Company will pay to the applicable government taxing authorities as Excise Tax withholding 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 that the amount taken into account hereunder at Company has actually withheld from the time Total Payments in accordance with applicable law. (e) Notwithstanding the preceding provisions of termination of the Executive's employmentthis Section 3.03, the Executive shall repay Company will not have any obligation to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of make the Gross-Up Payment attributable unless the value of the Total Payments exceeds 110% of the maximum amount of parachute payments that could be paid to such reduction the Executive without any imposition of golden parachute excise taxes under Code sections 280G and 4999 (plus the “110% Amount”). In that case, the value of the Total Payments will be reduced to the extent necessary so that, within the meaning of Code section 280G(b)(2)(A)(ii), the aggregate present value of the payments in the nature of compensation to (or for the benefit of) the Executive that are contingent on a Change in Control (with a Change in Control for this purpose being defined in terms of a “change” described in Code section 280G(b)(2)(A)(i) or (ii)), do not exceed 2.999 multiplied by the Base Amount. For this purpose, cash Severance Payments will be reduced first (if necessary, to zero), and all other, non-cash Severance Payments will be reduced next (if necessary, to zero). For purposes of the limitation described in the preceding sentence, the following will not be taken into account: (1) any portion of the Gross-Up Payment attributable Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Excise TaxDate of Termination, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the (2) any portion of the GrossTotal Payments that, in the opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of Code section 280G(b)(2). (f) For purposes of this Section 3.03, the value of any non-Up Payment being repaid cash benefit or any deferred payment or benefit included in the Total Payments will be determined by the Executive to Accounting Firm in accordance with the extent that such repayment results in a reduction in Excise Taxprinciples of Code sections 280G(d)(3) and (4). (g) Notwithstanding the foregoing, FICA and Medicare withholding taxes and/or federal, state or local income taxes) plus interest on the amount of such repayment at the rate provided in any payment under this Section 1274(b)(2)(B) 3.03 shall be made by March 15 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 year following the Executive's employment (including by reason ’s Date 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, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedTermination.

Gross-Up Payment. In the event that the 4.1 Regardless of whether Executive becomes entitled to any payments or benefits under this Agreement, if any of the Severance Benefits payments or benefits received or to be received by Executive (whether pursuant to the terms of this Agreement or any other benefits plan, arrangement or agreement with any System Company) (all such payments under this Agreement (other than pursuant and benefits, excluding the Gross-Up Payment, being hereinafter referred to this Section) by reason of the accelerated vesting of stock options thereunder (together, as the "Total BenefitsPayments"), and in the event that any of the Total Benefits ) will be subject to the Excise Tax, the Executive's System Company employer shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Benefits Payments and any federal, state and local income tax, and employment taxes and Excise Tax and FICA and Medicare withholding taxes upon the payment provided for by this SectionGross-Up Payment, shall be equal to the Total Benefits. Payments. 4.2 For purposes of determining whether any of the Total Benefits 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 all of 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) Total Payments shall be treated as "parachute payments" (within the meaning of Section section 280G(b)(2) of the CodCode) unless, and all "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") reasonably acceptable to Executive and selected by the Company's independent auditors and acceptable accounting firm which was, immediately prior to the Closing, Executive's System Company employers independent auditor (the "Auditor"), such other payments or benefits (in whole or in part) do not constitute parachute payments, or 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 services actually rendered (within the meaning of Section 280G(b)(4section 280G(b)(4)(B) of the Code Code) in excess of the Base AmountAmount allocable to such reasonable compensation, 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 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 taxes 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 4), net of the maximum 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). taxes. 4.3 In the event that the Excise Tax is subsequently finally determined to be less than the amount taken into account hereunder at in calculating the time of termination of the Executive's employmentGross-Up Payment, the Executive shall repay to the CompanyExecutive's System Company employer, at 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, Tax and federal, state and local income taxes and FICA and Medicare withholding employment taxes imposed on the portion of the Gross-Up Payment being repaid by the Executive Executive, to the extent that such repayment results in a reduction in the Excise Tax, FICA Tax and Medicare withholding taxes and/or a dollarfor-dollar reduction in Executive's taxable income and wages for purposes of federal, state or and local income and employment taxes) , plus interest on the amount of such repayment at 120% of the rate provided in Section 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 in calculating the time of the termination of the Executive's employment 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 Executive's System Company employer shall make an additional Gross-Up Payment, determined as previously described, to the Executive Payment in respect to of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at 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 Total Payments.

Gross-Up Payment. (a) In the event that the Executive becomes entitled to the any Severance Benefits Payments paid or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay payable to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 or 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 his benefit pursuant to the terms of this Agreement or any other agreement, plan or arrangement otherwise in connection with the Company, any Person whose actions result in a Change in Control (“ Total Payments”) would be subject to any Excise Tax, then the Executive will be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after the Executive’s payment of all taxes (including any interest, penalties, additional tax, or similar items imposed with respect to the Gross-Up Payment and the Excise Tax), including any Person affiliated with Excise Tax upon the Company or such Person) shall be treated as "parachute payments" within Gross-Up Payment, the meaning of Section 280G(b)(2) Executive retains an amount of the Cod, and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject Gross-Up Payment equal to the Excise Tax, unless in Tax imposed upon the opinion Total Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of tax counsel ("Tax Counsel") that Gross-Up Payment will be made at the Company’s expense by an Accounting Firm selected by the Executive and reasonably acceptable to the Company's independent auditors . The Accounting Firm will provide its determination, together with detailed supporting calculations and documentation, to the Company and the Executive within 10 business days after the Date of Termination, or such other time as requested by the Company and the Executive. If the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Payments, it will furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to the Payments. Within 10 business days after the Accounting Firm delivers its determination to the Executive, such other payments or benefits (the Executive will have the right to dispute the determination. The Gross-Up Payment, if any, as A-4 determined by the Accounting Firm in whole or in part) do not constitute parachute paymentsaccordance with the preceding provisions of this Section, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered will be paid by the Company to the Executive within the meaning of Section 280G(b)(4) 5 business days of the Code in excess receipt of the Base AmountAccounting Firm’s determination. The existence of a dispute will not in any way affect the Executive’s right to receive the Gross-Up Payment in accordance with the determination. If there is no dispute, or are otherwise the determination will be final, binding, and conclusive upon the Company and the Executive. If there is a dispute, then the Company and the Executive will together select a second Accounting Firm, which will review the determination and the Executive’s basis for the dispute and then render its own determination, which will be final, binding, and conclusive on the Company and the Executive. The Company will bear all costs associated with that determination, unless the determination is not subject to greater than the Excise Taxinitial determination, (ii) the amount of the Total Benefits in which shall case all such costs will be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Benefits reduced borne by the amount of such Total Benefits that in the opinion of Tax Counsel are not parachute payments, or Executive. (Bc) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i), above), and (iii) the The value of any non-cash benefits or any deferred payment or benefit shall paid or payable to the Executive will be determined by the Company's independent auditors in accordance with the principles of sections Code section 280G(d)(3) and (4) of the Code). For purposes of determining the amount of the Gross-Up Payment, the Executive shall will be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and applicable state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's ’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could that would be obtained from deduction of such those state and local taxes taxes. (calculated by assuming that any reduction under Section 68 of d) Notwithstanding anything contained in this Agreement to the Code contrary, in the event that, according to the Accounting Firm’s determination, an Excise Tax will be imposed on the Total Payments, the Company will pay to the applicable government taxing authorities as Excise Tax withholding 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 that the amount taken into account hereunder at Company has actually withheld from the time Total Payments in accordance with applicable law. (e) Notwithstanding the preceding provisions of termination of the Executive's employmentthis Section 3.03, the Executive shall repay Company will not have any obligation to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of make the Gross-Up Payment attributable unless the value of the Total Payments exceeds 110% of the maximum amount of parachute payments that could be paid to such reduction the Executive without any imposition of golden parachute excise taxes under Code sections 280G and 4999 (plus the “110% Amount”). In that case, the value of the Total Payments will be reduced to the extent necessary so that, within the meaning of Code section 280G(b)(2)(A)(ii), the aggregate present value of the payments in the nature of compensation to (or for the benefit of) the Executive that are contingent on a Change in Control (with a Change in Control for this purpose being defined in terms of a “change” described in Code section 280G(b)(2)(A)(i) or (ii)), do not exceed 2.999 multiplied by the Base Amount. For this purpose, cash Severance Payments will be reduced first (if necessary, to zero), and all other, non-cash Severance Payments will be reduced next (if necessary, to zero). For purposes of the limitation described in the preceding sentence, the following will not be taken into account: (1) any portion of the Gross-Up Payment attributable Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Excise TaxDate of Termination, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the (2) any portion of the GrossTotal Payments that, in the opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of Code section 280G(b)(2). (f) For purposes of this Section 3.03, the value of any non-Up Payment being repaid cash benefit or any deferred payment or benefit included in the Total Payments will be determined by the Executive to Accounting Firm in accordance with the extent that such repayment results in a reduction in Excise Taxprinciples of Code sections 280G(d)(3) and (4). (g) Notwithstanding the foregoing, FICA and Medicare withholding taxes and/or federal, state or local income taxes) plus interest on the amount of such repayment at the rate provided in any payment under this Section 1274(b)(2)(B) 3.03 shall be made by March 15 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 year following the Executive's employment (including by reason ’s Date 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, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedTermination.

Gross-Up Payment. In the event that the The term “Gross Up Payment” as used in this Employment Agreement shall mean a payment to or on behalf of Executive becomes entitled which shall be sufficient to the Severance Benefits or pay (1) 100% of any other benefits or payments under excise tax described in this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"§4.2(g), and in the event that any (2) 100% of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Tax tax and FICA social security and Medicare withholding taxes upon other employment tax on the payment provided for made to pay such excise tax as well as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by this Section, the Internal Revenue Service on Executive which are related to the timely payment of such excise tax (unless such interest or penalties are attributable to Executive’s willful misconduct or gross negligence with respect to such timely payment). A Gross Up Payment shall be equal to the Total Benefits. For purposes of determining whether made by ICE promptly after either ICE or ICE’s independent accountants determine that any of the Total Benefits will be subject to the Excise Tax payments and the amount of such Excise Tax, (i) benefits called for under this Employment Agreement together with any other payments or and benefits received or made available to be received Executive 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 ICE and any other agreement, plan or arrangement with the Company, any Person whose actions person will result in a Change Executive’s being subject to an excise tax under § 4999 of the Internal Revenue Code of 1986, as amended (which shall be referred to in Control or any Person affiliated with this § 4.2(g) as the Company “Code”) or such Person) shall be treated an excise tax is assessed against Executive as "parachute payments" within the meaning a result of Section 280G(b)(2) of the Cod, any such payments and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject other benefits if Executive takes such action (other than waiving Executive’s right 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 any 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 Amountpayments or benefits which Executive has expressly agreed to waive under this § 4.2(g)) as ICE reasonably requests under the circumstances to mitigate or challenge such excise tax; provided, however, if ICE or are otherwise ICE’s independent accountants make the determination described in this § 4.2(g) and, further, determine that Executive will not be subject to any such excise tax if Executive waives Executive’s right to receive a part of such payments or benefits and such part does not exceed $15,000, Executive shall irrevocably waive Executive’s right to receive such part if an independent accountant or lawyer retained by Executive and paid by ICE agrees with the Excise Tax, (ii) the amount of the Total Benefits which shall be treated as subject determination made by ICE or ICE’s independent accountants with respect 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 effect of such reduction in Excise Tax is finally determined, the portion payments or benefits. Any determinations under this §4.2(g) shall be made in accordance with § 280G of the Gross-Up Payment attributable Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law and, if ICE reasonably requests that Executive take action to mitigate or challenge, or to mitigate and challenge, any such reduction tax or assessment (plus that portion other than waiving Executive’s right to any payments or benefits in excess of the Gross-Up Payment attributable payments or benefits which Executive has expressly agreed to the Excise Taxwaive under this §4.2(g)) and Executive complies with such request, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the portion of 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 federal, state or local income taxes) 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 ICE shall make an additional Gross-Up Payment, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the provide Executive with respect to such excess) at the time that the amount of information and such excess is finally determinedexpert advice and assistance from ICE’s independent accountants, lawyers and other advisors as Executive may reasonably request and shall pay for all expenses incurred in effecting such compliance and any related fines, penalties, interest and other assessments.

Gross-Up Payment. In the event that any payment or distribution by the Company to or for the benefit of the Executive becomes entitled to the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any other agreement, plan or arrangement with the Company, any Person whose actions result in additional payments required under this Section 6(e)) (a Change in Control or any Person affiliated with the Company or such Person"Payment") shall would be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986 (the "Code") or any interest or penalties are incurred by the Executive with respect to such excise tax (collectively, the "Excise Tax"), unless in then the opinion of tax counsel Executive will be entitled to receive an additional payment (a "Tax CounselGross-Up Payment") selected in an amount such that after payment by the Company's independent auditors Executive of all taxes (including any income taxes and acceptable interest or penalties imposed with respect to the Executive, such other payments or benefits (in whole or in parttaxes) 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 and 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 imposed on 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 retains an 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 equal to the Excise Tax imposed on the Payments. All determinations required to be made under this Section 6(e), including whether and when a Gross- Up Payment is required and the amount of such reduction Gross-Up Payment, will be made by the independent accounting firm of the Company immediately prior to the Executive's termination of employment (plus the "Accounting Firm"). All fees and expenses of the Accounting Firm will be borne solely by the Company, and any determination by the Accounting Firm will be binding upon the Company and the Executive. Any Gross-Up Payment, as determined pursuant to this Section 6(e), will be paid by the Company to the Executive within ten days of the receipt of the Accounting Firm's determination. (i) If the Accounting Firm determines that portion no Excise Tax is payable by the Executive, it shall so indicate to the Executive in writing. (ii) In the event there is an under-payment of the Gross-Up Payment attributable due to the Excise Tax, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on uncertainty in the portion application of Section 4999 of 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 federal, state or local income taxes) 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 Code at the time of the termination initial determination by the Accounting Firm and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will determine the amount of any such under-payment that has occurred and such amount will be promptly paid by the Company to or for the benefit 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, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined.

Gross-Up Payment. (a) In the event it shall be determined that any payment or distribution by the Company or its affiliated companies to or for the benefit of the Executive becomes entitled to the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any other agreement, plan or arrangement with the Company, any Person whose actions result in additional payments required under this Section 6) (a Change in Control or any Person affiliated with the Company or such Person“Payment”) shall would be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, and all "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 excise tax counsel ("Tax Counsel") selected imposed 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) 4999 of the Code. For purposes , or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of determining the amount 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 Excise Tax imposed upon the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate retains an amount of federal income taxation in the calendar year in which the Gross-Up Payment is equal to the Excise Tax imposed upon the Payments. (b) All determinations required to be made under this Section 6, including whether and state when a Gross-Up Payment is required 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 Gross-Up Payment and local income taxes the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized public accounting firm selected and retained by the Company (the “Accounting Firm”) that would otherwise will provide detailed supporting calculations both to the Company and to the Executive as soon as practicable following the receipt of notice from the Executive that there has been a Payment. All fees and expenses of the Accounting Firm shall be deductible borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 6, shall be paid by the Company to the Executive promptly following the receipt of the Accounting Firm’s determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, the Accounting Firm shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive’s applicable federal income tax return should not result in the imposition of a negligence or similar penalty or comparable opinion supporting such determination in accordance with the practices and procedures of 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 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 Section 6(c) and the Executive thereafter is required to make a payment of any Excise Tax is subsequently determined to be less than Tax, the Accounting Firm shall determine the amount taken into account hereunder at of the time of termination Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive's employment, the . (c) The Executive shall repay to notify the Company, at the time that the amount Company in writing 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 portion of the Gross-Up Payment being repaid any claim by the Executive to Internal Revenue Service that, if successful, would require the extent that such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) plus interest on payment by 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 Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than 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 30-day period following the date on which the 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 the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim. The Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Executive shall also be entitled to be paid all reasonable legal fees and expenses, if any, incurred in connection with any tax audit or proceeding to the extent attributable to the application of Paragraph 4999 of the Code to any payment or benefit hereunder. Without limitation on the foregoing provisions of this Section 6(c), the Company shall make an additional Gross-Up Paymentcontrol all proceedings taken in connection with such contest and, determined 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 previously describedthe Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and ▇▇▇ for a refund, the Company shall advance the amount of such payment to the Executive in 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 excess (plus advance or with respect to any interestimputed income with respect to such advance; and provided further, penalties or additions payable by 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 excesscontested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) at If, after the time that receipt by the Executive of an amount advanced by the Company pursuant to Section 6(c), the Executive becomes entitled to receive, and receives, any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of Section 6(c)) promptly pay to the Company the amount of such excess refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 6(c), a determination is finally determinedmade that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. In (a) To the event extent that the Executive becomes entitled to the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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) the grant of the Restricted Shares under Section 7 hereof or (ii) the payment of any Severance Payment (or other payments payment 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" benefit within the meaning of Section 280G(b)(2) 280G of the CodInternal Revenue Code of 1986, as amended (the “Code”)) under Sections 17, 18 and all "excess parachute payments" within 19 hereof (collectively, the meaning the Section 280G(b)(1“Payments”) shall would 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 taxes imposed against Executive under 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 inclusive of any non-cash benefits or any deferred payment or benefit shall be determined excise tax imposed by the Company's independent auditors in accordance with the principles of sections 280G(d)(3) and (4) Section 4999 of the Code. For purposes ) and any state or local tax code or regulations, if applicable, (collectively, the “Taxes”), then the Company shall pay, and Executive will be entitled to receive, an additional payment (the “Gross-Up Payment”) in an amount such that after payment by the Executive of determining the amount of all applicable Taxes including any Taxes imposed upon 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 retains an 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 equal to the Taxes imposed by reason of the Payments. For the avoidance of doubt, it is further provided that the Company shall pay all Taxes as a result of any final determination by the Internal Revenue Service that the right of first refusal granted to the Company in the Restricted Stock Agreement does not decrease the value of the Restricted Shares as of the date of the grant to the amount agreed upon by the Company and the Executive. To the extent Executive incurs any interest or penalties with respect to such reduction Taxes (plus that portion other than interest and penalties due to Executive’s failure to timely make any applicable election, file a tax return or pay taxes shown on his return) (the “Expenses”), then the Company shall reimburse Executive for such Expenses within five (5) days after Executive incurs such Expenses. This reimbursement obligation shall remain in effect during the applicable statute of limitations applicable to any such Expenses, and the amount of Expenses eligible for reimbursement during any taxable year of Executive will not affect the amount of Expenses eligible for reimbursement in any other taxable year of Executive. This right to reimbursement is not subject to liquidation or exchange for another benefit. To the extent the reimbursement by the Company of any Expenses is taxable to Executive, such taxable amount shall be subject to a Gross-Up Payment attributable to by the Excise Tax, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the portion of the Company as provided herein. (b) The Company shall bear any expense necessary in determining whether a Gross-Up Payment being repaid by the Executive is required pursuant to the extent that such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Codethis Agreement. 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 The Gross-Up Payment, determined as previously describedif any, shall be paid by the Company to the Executive in respect to such excess within five (plus any interest, penalties or additions payable 5) days after remittance by the Executive with respect of the applicable Taxes to such excess) at the time that Internal Revenue Service and the amount submission to the Company of appropriate documentation of such excess is finally determinedremittance as may be required by the Company.

Gross-Up Payment. In the event that any payment or distribution by the Executive becomes entitled Company to or for the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason benefit of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Chief Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any other agreement, plan or arrangement with the Company, any Person whose actions result in additional payments required under this Section 11) (a Change in Control or any Person affiliated with the Company or such Person"Payment") shall would be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986 (the "Code") or any interest or penalties are incurred by the Chief Executive with respect to such excise tax (collectively, the "Excise Tax"), unless in then the opinion of tax counsel Chief Executive will be entitled to receive an additional payment (a "Tax CounselGross-Up Payment") selected in an amount such that after payment by the Company's independent auditors Chief Executive of all taxes (including any income taxes and acceptable interest or penalties imposed with respect to the Executive, such other payments or benefits (in whole or in parttaxes) 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 and 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 imposed on the Gross-Up Payment, the Chief 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 retains an 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 equal to the Excise Tax imposed on the Payments. All determinations required to be made under this Section, including whether and when a Gross-Up Payment is required and the amount of such reduction Gross-Up Payment, will be made by the independent accounting firm of the Company immediately prior to the Chief Executive's termination of employment (plus the "Accounting Firm"). All fees and expenses of the Accounting Firm will be borne solely by the Company, and any determination by the Accounting Firm will be binding upon the Company and the Chief Executive. Any Gross-Up Payment, as determined pursuant to this Section, will be paid by the Company to the Chief Executive within 30 days of the receipt of the Accounting Firm's determination. (i) If the Accounting Firm determines that portion no Excise Tax is payable by the Chief Executive, it shall so indicate to the Chief Executive in writing. (ii) In the event there is an under-payment of the Gross-Up Payment attributable due to the Excise Tax, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on uncertainty in the portion application of Section 4999 of 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 federal, state or local income taxes) 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 Code at the time of the termination of initial determination by the Executive's employment (including by reason Accounting Firm and the Chief Executive thereafter is required to make a payment of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment)Excise Tax, the Company shall make an additional Gross-Up Payment, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that Accounting Firm will determine the amount of any such excess is finally determinedunder-payment that has occurred and such amount will be promptly paid by the Company to or for the benefit of the Chief Executive.

Gross-Up Payment. In the event that the Executive becomes entitled (a) Anything in this Agreement to the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (togethercontrary notwithstanding, the "Total Benefits"), and in the event if it shall be determined that any of the Total Benefits will Payments would be subject to the Excise TaxTax or any interest or penalties are incurred and it is determined that the Payments should not be reduced pursuant to Section 4.1, the Company shall pay to then the Executive shall be entitled to receive an additional amount payment (the a "Gross-Up Payment") in an amount such that the net amount retained by the Executive, after 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 of all taxes (including any interest or penalties imposed with a Change in Control or the Executive's termination of employment (whether pursuant respect to the terms of this Agreement or any other agreementsuch taxes), plan or arrangement with the Companyincluding, without limitation, any Person whose actions result in a Change in Control or income taxes (and any Person affiliated interest and penalties imposed with the Company or such Person) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, and all "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") 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)(3respect thereto) and (4) of the Code. For purposes of determining the amount of Excise Taxes imposed upon the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate retains an amount of federal income taxation in the calendar year in which the Gross-Up Payment is equal to the Excise Tax imposed upon the Payments. (b) All determinations required to be made under this Section 4.2, including whether and state when a Gross-Up Payment is required 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 Gross-up Payment and local income taxes that would otherwise the assumptions to be deductible utilized in arriving at such determination, shall be made by the Company's Accountants, who shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accountants shall be borne solely by the Company. Any Gross-Up Payment as determined pursuant to this Section 4.2 shall be paid by the Company to the Executive within five days of the receipt of the Accountants' determination. Any determination by the Accountants shall be binding upon the Company and the Executive). As a result of the uncertainty in the application of Sections 280G and 4999 of the Code, at the time of the initial determination by the Accountants hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment") consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 4.2(c) and the Executive thereafter is required to make a payment of any Excise Tax is subsequently determined to be less than Tax, the Accountants shall determine the amount taken into account hereunder at of the time of termination Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive's employment, the . (c) The Executive shall repay to notify the Company, at the time that the amount Company in writing 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 portion of the Gross-Up Payment being repaid any claim by the Executive to Internal Revenue Service that, if successful, would require the extent that such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) plus interest on payment by 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 Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten 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 30-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to 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 the 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 4.2, the Company shall make an additional Gross-Up Paymentcontrol all proceedings taken in connection with such contest and, determined 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 for a refund or contest t▇▇ 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 previously describedthe Company shall determine; PROVIDED, further, that if the Company directs the Executive to pay such claim and sue for a refund, the Company ▇▇all advance the amount of such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive in 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 excess (plus advance or with respect to any interestimputed income with respect to such advance; and PROVIDED, penalties or additions payable by 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 excesscontested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be any other issue raised by the Internal Revenue Service or any other taxing authority. (d) at If, after the time that receipt by the Executive of an amount advanced by the Company pursuant to Section 4.2(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's compliance with the requirements of Section 4.2) promptly pay to the Company the amount of such excess refund (together with any interest paid or credited thereon after taxes applicable thereto). If after the receipt by the Executive of an amount advanced by the Company pursuant to Section 4.2, a determination is finally determinedmade that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 5.

Gross-Up Payment. In (A) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company, any individual or entity whose actions result in a Change in Control, or their respective subsidiaries or affiliates to or for the benefit of the Executive becomes entitled (including any payment or benefits received in connection with a Change in Control or the Executive's termination of employment, whether pursuant to the Severance Benefits terms of this Agreement or any other benefits plan, arrangement or agreement) (all such payments under this Agreement and benefits, excluding the Gross-Up Payment (other than pursuant as defined below), being hereinafter referred to this Section) by reason of the accelerated vesting of stock options thereunder (together, as the "Total BenefitsPayments"), and in the event that any of the Total Benefits ) will be subject to any excise tax imposed under Section 4999 of the Code (such tax, the "Excise Tax"), the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Benefits Payments and any federal, state and local income tax, and employment taxes and Excise Tax and FICA and Medicare withholding taxes upon the payment provided for by this SectionGross-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 Benefits. Payments. (B) For purposes of determining whether any of the Total Benefits 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 all of 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) Total Payments shall be treated as "parachute payments" (within the meaning of Section section 280G(b)(2) of the CodCode) unless, and all "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") reasonably acceptable to the Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's independent auditors and acceptable to auditor (the Executive"Auditor") (which Tax Counsel may be the Company's general counsel), such other payments or benefits (in whole or in part) do not constitute parachute payments, or 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 services actually rendered (within the meaning of Section 280G(b)(4section 280G(b)(4)(B) of the Code Code) in excess of the Base AmountAmount allocable to such reasonable compensation, 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 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 taxes 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 date of Terminationtermination of the Executive's employment with the Company (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Subsection 4(f)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes 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 by Tax Counsel to be less than the amount taken into account hereunder at in calculating the time of termination of the Executive's employmentGross-Up Payment, the Executive shall repay to the Company, at within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally so 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, Tax and federal, state and local income taxes and FICA and Medicare withholding employment taxes imposed on the portion of the Gross-Up Payment being repaid by the Executive Executive), to the extent that such repayment results in a reduction in the Excise Tax, FICA Tax and Medicare withholding taxes and/or a dollar-for-dollar reduction in the Executive's taxable income and wages for purposes of federal, state or and local income and employment taxes) , plus interest on the amount of such repayment at 120% of the rate provided in Section section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined by Tax Counsel to exceed the amount taken into account hereunder at in calculating the time of the termination of the Executive's employment 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, determined as previously described, to the Executive Payment in respect to of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at within five (5) business days following the time that the amount of such excess is determined by Tax Counsel. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (D) The determination by Tax Counsel shall be conclusive and binding upon all parties unless the Internal Revenue Service, a court of competent jurisdiction, or such other duly empowered governmental body or agency (a “Taxing Authority”) determines that the Executive owes a greater or lesser amount of Excise Tax with respect to the Total Payments than the amount determined by Tax Counsel. (E) If a Taxing Authority makes a claim against the Executive, the Company shall be liable for and indemnify the Executive against any loss in connection with, and all costs and expenses, including attorneys’ fees, which may be incurred as a result of contesting the claim. Should a Taxing Authority finally determineddetermine that an additional Excise Tax is owed, then the Company shall, within five (5) business days of such determination, pay an additional Gross-Up Payment to the Executive with respect to the additional Excise Tax and any assessed interest, fines or penalties. Should a Taxing Authority finally determine that the Executive owes a lesser amount of Excise Tax, then the Executive shall repay such excess to the Company within five (5) business days of such determination; provided, however, that such repayment shall be reduced by the amount of any taxes paid by the Executive on such excess which is not offset by the tax benefit attributable to such repayment. (F) All Gross-Up Payments, including any additional Gross-Up Payments under Section 4(f)(v)(C) and (E), shall be made to the Executive by the end of the calendar year next following the year in which the Executive remits the related taxes to the relevant Taxing Authorities. Payment pursuant to Section 4(f)(v)(E) of amounts indemnifying the Executive against any loss in connection with, and all costs and expenses which may be incurred as a result of contesting, a claim made against the Executive by a Taxing Authority, shall be made to the Executive by the end of the calendar year following the year in which the taxes which are the subject of the claim are remitted to the relevant Taxing Authority, or where, as a result of the claim, no taxes are remitted, by the end of the calendar year following the year in which there is a final nonappealable settlement or other resolution of the claim.

Gross-Up Payment. In the event that the Executive becomes entitled Notwithstanding anything to the Severance Benefits or any other benefits or payments under contrary in this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (togetherAgreement, the "Total Benefits"), and in the event that if any of the Total Benefits will payments or benefits which the Executive has the right to receive from the Corporation (the “Payments”) are later determined to be subject to the Excise tax imposed by Section 409A of the Code, or any interest or penalties with respect to such tax (such tax, together with any such interest or penalties, are hereinafter collectively referred to as the “409A Tax”), the Company Corporation shall pay to the Executive an additional amount payment (the "a “Gross-Up up Payment"”) in an amount such that the net amount retained by the Executive, after 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 of all taxes (including any interest or penalties imposed with a Change in Control or the Executive's termination of employment (whether pursuant respect 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 Cod, and all "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") 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 (itaxes), above)including any income tax imposed on any Gross-up Payment, 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 Executive retains an amount of the Gross-Up up Payment equal to the 409A Tax imposed upon the Payments. The Compensation Committee of the Board shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment, . The Corporation's payment of any amount due to the Executive by reason of this Section 1.6 shall be deemed to pay federal income taxes at made promptly after the highest marginal rate Compensation Committee of federal income taxation the Board makes its determination, but in any event no later than December 31 of the calendar year following the year in which the Executive makes his payment of the 409A Tax to the Internal Revenue Service. The Executive shall notify the Corporation immediately in writing of any claim by the Internal Revenue Service which, if successful, would require the Corporation to make a Gross-Up up Payment is to be made and state and local income taxes at (or a Gross-up Payment in excess of that, if any, initially determined by the highest marginal rate of taxation in the state and locality Compensation Committee of the Executive's residence on the Date of Termination, net Board) within five days of the reduction in federal income taxes which could be obtained from deduction receipt 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)claim. 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 The Corporation 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 portion of 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 federal, state or local income taxes) 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, determined as previously described, to notify the Executive in respect writing at least five days prior to such excess (plus the due date of any interest, penalties or additions payable by the Executive response required with respect to such excessclaim if it plans to contest the claim. If the Corporation decides to contest such claim, then the Executive shall cooperate fully with the Corporation in such action; provided, however, the Corporation shall bear and pay all costs and expenses (including additional interest and penalties) at incurred in connection with such action and shall indemnify and hold the time that Executive harmless, on an after-tax basis, for any 409A Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Corporation’s action. If, as a result of the Corporation’s action with respect to a claim, the Executive receives a refund of any amount paid by the Corporation with respect to such claim, then the Executive shall promptly pay such refund to the Corporation. If the Corporation fails to timely notify the Executive whether it will contest such claim or the Corporation determines not to contest such claim, then the Corporation shall immediately pay to the Executive the portion of such excess is finally determinedclaim, if any, which it has not previously paid to the Executive.

Gross-Up Payment. In (i) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that the Executive becomes entitled to the Severance Benefits any payment, award, benefit or distribution (or any other benefits acceleration of any payment, award, benefit or payments distribution) to or for the benefit of Executive provided under this Agreement (other than pursuant to this Sectionthe “Payments”) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will would be subject to the Excise a twenty percent addition to taxation under Section 409A (“409A Tax”) or any interest or penalties are incurred by Executive with respect to such tax, then the Company shall pay to the Executive an additional amount payment (the "a “Gross-Up Payment"”) in an amount such that the net amount retained after payment by the Executive, after deduction Executive of any Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Tax and FICA and Medicare withholding taxes all 409A Taxes imposed upon the payment provided for by this SectionGross-Up Payment, shall be Executive retains an amount of the Gross-Up Payment equal to the Total Benefits. For purposes sum of determining whether (x) the 409A Taxes, interest, and penalties imposed upon the Payments and (y) the product of any deductions disallowed because of the Total Benefits will be subject to inclusion of the Excise Tax Gross-Up Payment in Executive’s adjusted gross income and the amount highest applicable marginal rate of such Excise Tax, (i) any other payments or benefits received or income taxation for the calendar year in which the Gross-Up Payment is 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 Cod, and all "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") 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 Codemade. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (A) pay federal income taxes at the highest marginal rates of federal income taxes at the highest marginal rate of federal income taxation in for the calendar year in which the Gross-Up Payment is to be made and made, (B) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the state and locality of the Executive's residence on the Date of TerminationGross-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 (calculated by assuming that any reduction under Section 68 C) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because 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 inclusion of the Gross-Up Payment attributable in Executive’s adjusted gross income. (ii) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) to or for the benefit of Executive (the “Payments”) as a result of the transactions consummated on July 30, 2008, pursuant to which MergerSub merged with and into the Company (the “Transaction”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code (the “Code”), or any interest or penalties are incurred by Executive with respect to such reduction excise tax (plus such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to Executive an additional payment (a “Gross-Up Payment”) in an amount such that portion after payment by Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment attributable equal to the sum of (x) the Excise Tax, federal, state Tax imposed upon the Payments and local income taxes and FICA and Medicare withholding taxes imposed on (y) the portion product of any deductions disallowed because of the inclusion of the Gross-Up Payment being repaid by in Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to (A) pay federal income taxes at the highest marginal rates of federal income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, (B) pay 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 state and local taxes and (C) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income. (iii) Subject to the extent that such repayment results in provisions of Section 9(i) and 9(ii), as applicable, all determinations required to be made under this Section 9, including whether and when a reduction in Excise TaxGross-Up Payment is required, FICA and Medicare withholding taxes and/or federal, state or local income taxes) plus interest on the amount of such repayment Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by a nationally recognized public accounting firm that is selected by the Company (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the receipt of notice from the Company or Executive that there has been a Payment, or such earlier time as is requested by the Company or Executive (collectively, the “Determination”). All fees and expenses of the Accounting Firm shall be borne solely by the Company, and the Company shall enter into any reasonable agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under this Section 9 with respect to any Payments made to Executive shall be made to the relevant tax authorities no later than the date on which the 409A Tax or Excise Tax on such Payments is due to the relevant tax authorities. If the Accounting Firm determines that no 409A Tax or Excise Tax is payable by Executive, it shall furnish Executive with a written opinion to such effect, and to the effect that failure to report the 409A Tax or Excise Tax, if any, on Executive’s applicable federal income tax return should not result in the imposition of a negligence or similar penalty. (iv) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the Determination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”) or Gross-Up Payments are made by the Company which should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder. In the event that Executive thereafter is required to make payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by the Company to or for the benefit of Executive. 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)Payment exceeds the amount necessary to reimburse Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive (to the extent he has received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Company. Executive shall cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company shall make an additional in connection with any contest or disputes with the Internal Revenue Service in connection with the Excise Tax. (v) Executive expressly acknowledges and agrees that the Gross-Up PaymentPayment in Paragraph 9(ii) is limited exclusively to Excise Tax that may come due in connection with Payments to or for the benefit of Executive as a result of the Transaction, determined and that Executive will not be entitled to any Gross-Up Payments as previously described, to a result of any change of control that may occur following the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedEffective Date.

Gross-Up Payment. In (a) If it is determined that any payment or distribution by the event that Company to or for the Executive becomes entitled to the Severance Benefits benefit of Executive, whether paid or any other benefits payable or payments distributed or distributable under this Agreement or otherwise (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total BenefitsPayment"), and in would constitute an "excess parachute payment" within the event that any meaning of Section 280G of the Total Benefits will be subject to the Excise TaxCode, the Company shall will pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, Executive after deduction of any Excise Tax on excise tax imposed under Section 4999 of the Total Benefits Code, and any federalFederal, state and local income tax, Excise Tax and FICA employment tax and Medicare withholding taxes excise tax imposed upon the payment provided for by this Section, shall be Gross-Up Payment is 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 Cod, and all "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") 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 CodePayment. For purposes of determining the amount of the Gross-Up Payment, the Executive shall will be deemed to pay federal Federal income tax and employment taxes at the highest marginal rate of federal Federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made (currently, 35% and 7.65%, respectively) and state and local income taxes at the highest marginal rate of taxation applicable to personal service income in the state and locality of the Executive's residence on the Date of Terminationdate Executive's employment terminates, net of the maximum reduction in federal Federal income taxes which could that may be obtained from the deduction of such state and local taxes and without regard to any other items of income, gain, loss, deduction or credit of Executive. (calculated by assuming that any reduction under Section 68 of b) The firm charged with preparing the Code in the amount of itemized deductions allowable Company's tax returns immediately prior to the Executive applies first to reduce Change of Control (the amount "Accounting Firm") will make calculations required under this Section 5.6, and the Company will provide the result of such state calculations and local income taxes that would otherwise be deductible by the supporting documentation to Executive promptly following 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 's termination of employment. The Accounting Firm's determination will be binding upon the Company and Executive's employment, the . The Company or its successor will pay 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 up Payment attributable to such reduction (plus that portion no later than the tenth day after the date on which it forwards the results of the Gross-Up Payment attributable Accounting Firm's determination to Executive. (c) Executive must notify the Excise Tax, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the portion Company in writing of the Gross-Up Payment being repaid any claim by the Executive to Internal Revenue Service that, if successful, would require the extent that such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) plus interest on payment by 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 Company of the Gross-Up Payment), . Such notice must be given as soon as practicable but no later than ten business days after Executive knows of such claim and must apprise the Company shall make an additional Gross-Up Payment, determined as previously described, of the nature of such claim and the date on which such claim is requested to be paid. Executive will not pay such claim prior to the Executive in respect expiration of the 30-day period following the date on which it gives such notice to the Company (or such excess (plus shorter period ending on the date that any interest, penalties or additions payable by the Executive payment of taxes with respect to such excessclaim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive will: (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 may 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. (d) The Company will pay directly all costs and expenses (including additional interest and penalties) incurred in connection with the Internal Revenue Service claim under Section 5.6(c). The Company will also control all proceedings taken in connection with such claim and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearing and conferences with the time that 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 ▇▇aim in any permissible manner, and Executive agrees to prosecute such contest to a termination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company may determine. If the Company directs Executive to pay such claim and sue for a refund, the Company s▇▇▇l advance the amount of such excess payment to Executive on an interest-free basis. (e) If, after the receipt by Executive of an amount advanced by the Company pursuant to this Section 5.6, Executive becomes entitled to receive any refund with respect to such claim, Executive will (subject to the Company's complying with the requirements of Section 5.6(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to this Section 5.6, a determination is finally determinedmade 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 days after such determination, then such advance will be forgiven and will not be required to be repaid and the amount of such advance will offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. (f) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in Section 5.6(b) will be borne solely by the Company.

Gross-Up Payment. In (a) To the event extent that the Executive becomes entitled to the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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) the payment of any Severance Payment, (ii) vesting under the grant of any stock grant or option provided under Section 6 hereof, or (iii) the payment of any other 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" benefit within the meaning of Section 280G(b)(2) 280G of the CodInternal Revenue Code of 1986, and all "excess parachute payments" within as amended (the meaning “Code”) under any other agreement (collectively, “Payments”) would result in any taxes being imposed against Executive under Section 4999 of the Code (the “Excise Tax”), or, to the extent that the reimbursement of the Disputed Commission under Section 280G(b)(19(b) shall be treated as subject to hereof would result in any taxes being imposed against Executive under the Code (together with the Excise Tax, unless “Taxes”), then the Company shall pay, and Executive will be entitled to receive, a payment (the “Gross-Up Payment”) in an amount equal to such Taxes, plus an amount as shall be required to hold Executive harmless from any tax liability relating to the opinion payment of such Gross-Up Payment. To the extent Executive incurs any interest or penalties with respect to such Taxes (other than interest and penalties due to Executive’s failure to timely make any applicable election, file a tax counsel return or pay taxes shown on his return) ("Tax Counsel"the “Expenses”), then the Company shall reimburse Executive for such Expenses within five (5) selected days after Executive incurs such Expenses. This reimbursement obligation shall remain in effect during the applicable statute of limitations applicable to any such Expenses, and the amount of Expenses eligible for reimbursement during any taxable year of Executive will not affect the amount of Expenses eligible for reimbursement in any other taxable year of Executive. This right to reimbursement is not subject to liquidation or exchange for another benefit. To the extent the reimbursement by the Company's independent auditors and acceptable Company of any Expenses is taxable 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 taxable amount shall be 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 a Gross-Up Payment by the amount of such Total Benefits that Company as provided herein. (b) The Company shall bear any expense necessary 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 nondetermining whether a Gross-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 CodeUp Payment is required pursuant to this Agreement. For purposes of determining the amount of the The Gross-Up Payment, the Executive if any, 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 paid by the Executive). In the event that the Excise Tax is subsequently determined Company 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 within five (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 portion of the Gross-Up Payment being repaid 5) days after remittance by the Executive of the applicable Taxes to the extent that such repayment results in a reduction in Excise Tax, FICA Internal Revenue Service and Medicare withholding taxes and/or federal, state or local income taxes) plus interest on the amount submission to the Company of appropriate documentation 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 remittance as may be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable required by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedCompany.

Gross-Up Payment. In the event that If the Executive becomes entitled to payments and benefits following a Change in Control under Section 6(f) or the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 accelerate following a Change in Control as provided in any stock option agreement or certificate, the Company will cause its independent auditors promptly to review, at the Company’s sole expense, the applicability of Code Section 4999 to any payment or distribution of any type by the Company to or for the Executive's termination of employment (’s benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, any stock option agreement or certificate or otherwise (the “Total Payments”). If the auditor determines that the Total Payments result in an excise tax imposed by Code Section 4999 or any other agreementcomparable state or local law, plan or arrangement with the Company, any Person whose actions result in a Change in Control or any Person affiliated 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 “Excise Tax”), the Company or such Personwill make an additional cash payment (a “Gross-Up Payment”) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject to the Executive within 10 days after such determination equal to an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any 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 imposed upon the Gross-Up Payment, the Executive shall would retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. For purposes of the foregoing determination, the Executive’s tax rate will be deemed to pay federal income taxes at be the highest statutory marginal state and federal tax rate (on a combined basis) then in effect. If no determination by the Company’s auditors is made prior to the time the Executive is required to file a tax return reflecting the Total Payments, the Executive will be entitled to receive from the Company a Gross-Up Payment calculated on the basis of federal income taxation the Excise Tax the Executive reported in such tax return, within 10 days after the later of the date on which the Executive files such tax return or the date on which the Executive provides a copy thereof to the Company. In all events, if any tax authority determines that a greater Excise Tax should be imposed upon the Total Payments than is determined by the Company’s independent auditors or reflected in the calendar year Executive’s tax return pursuant to this Section 6(g), the Executive will be entitled to receive from the Company the full Gross-Up Payment calculated on the basis of the amount of Excise Tax determined to be payable by such tax authority within 10 days after the Executive notifies the Company of such determination. Notwithstanding the foregoing, in which the event the Company reasonably determines that the Gross-Up Payment is subject 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 portion of 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 federal, state or local income taxes) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) 409A of the Code. In , such payment will be made in the event that same calendar year in which 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, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedTotal Payments are made.

Gross-Up Payment. In (a) If it shall be determined that any amount paid, distributed or treated as paid or distributed by the event that Company to or for the benefit of the Executive becomes entitled to the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 paid or payable or distributed or distributable pursuant to the terms of this Agreement or any other agreement, plan or arrangement with the CompanyAgreement, any Person whose actions result in a Change in Control or any Person affiliated with stock option agreement between Executive and the Company or such Personotherwise, but determined without regard to any additional payments required under this Article 7) shall (a “Payment”) would be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, being hereinafter collectively referred to as the “Excise Tax”), unless then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the opinion Executive of all federal, state and local taxes (including any interest or penalties imposed with respect to such taxes), including without limitation, any income taxes (including any interest or penalties imposed with respect thereto) and Excise Tax imposed on the Gross-up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (b) The determinations of whether and when a Gross-Up Payment is required under this Article 7 shall be made by independent tax counsel ("the “Tax Counsel"”) selected based on its good faith interpretation of applicable law. The amount of such Gross-Up Payment and the valuation assumptions to be utilized in arriving at such determination shall be made by an independent nationally recognized accounting firm (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company's independent auditors . The Tax Counsel and acceptable Accounting Firm shall be appointed by the Company after consultation in good faith with the Executive and subject to the approval of the Executive (which approval shall not be unreasonably withheld). All fees and expenses of any Tax Counsels and Accounting Firms referred to above shall be borne by the Company. Any Gross-Up Payment, as determined pursuant to this Article 7, shall be paid by the Company to the Executive within ten (10) days of the receipt of the Accounting Firm’s determination. Any determinations by the Tax Counsel and Accounting Firm shall be binding upon the Company and the Executive, provided, however, if it is later determined that there has been an underpayment of Excise Tax and that Executive is required to make an additional Excise Tax payment(s) on any Payment or Gross-Up Payment, the Company shall provide a similar full gross-up on such other payments or benefits additional liability. (in whole or in partc) do not constitute For purposes of any determinations made by any Tax Counsel and Accounting Firm acting under Section 7.1(b): (i) All Payments and Gross-Up Payments with respect to Executive shall be deemed to be “parachute payments, or such excess parachute payments Payments” under Section 280G(b) (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(42) of the Code in and to be “excess parachute payments” under Section 280G(b) (1) of the Base Amount, or Code that are otherwise not subject to the Excise Tax, (ii) the amount of the Total Benefits which shall be treated as fully subject to the Excise Tax shall be equal under Section 4999 of the Code, except to the lesser of extent (Aif any) the total amount of the Total Benefits reduced by the amount of that such Total Benefits that in the opinion of Tax Counsel are determines in writing in good faith that a Payment in whole or in part does not constitute a “parachute payments, payment” or otherwise is not subject to Excise Tax; (Bii) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i), above), and (iii) the The value of any non-cash benefits or any deferred payment or benefit delayed payments or benefits shall be determined by the Company's independent auditors in accordance a manner consistent with the principles of sections 280G(d)(3) and (4) Section 280G of the Code. For purposes of determining the amount of the Gross-Up Payment, the ; and (iii) Executive shall be deemed to pay federal federal, state and local income taxes at the highest actual maximum marginal rate of federal income taxation applicable to individuals 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 Terminationmade, net of the any applicable reduction in federal income taxes which could be obtained from deduction of such for any 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 paid on the portion of the Gross-Up Payment being repaid by the Executive to the extent that such repayment results amounts in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) 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, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedquestion.

Gross-Up Payment. In (a) If it shall be determined that any amount paid, distributed or treated as paid or distributed by the event that Company to or for the benefit of the Executive becomes entitled to the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any other agreement, plan or arrangement with the Company, any Person whose actions result in additional payments required under this Article 7) (a Change in Control or any Person affiliated with the Company or such Person"Payment") shall would be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, being hereinafter collectively referred to as the "Excise Tax"), unless in then the opinion of tax counsel Executive shall be entitled to receive an additional payment (a "Tax CounselGross-Up Payment") selected in an amount such that after payment by the Company's independent auditors Executive of all federal, state and acceptable local taxes (including any interest or penalties imposed with respect to such taxes), including without limitation, any income taxes (including any interest or penalties imposed with respect thereto) and Excise Tax imposed on the ExecutiveGross-up Payment, 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 Executive retains an amount of the Total Benefits which shall be treated as subject Gross-Up Payment equal to the Excise Tax shall be equal to imposed upon the lesser of (A) the total amount of the Total Benefits reduced by the amount of such Total Benefits Payments, provided, however, 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 no event will the amount of the Gross-Up Payment payable pursuant to this Article 7 exceed Two Hundred Fifty Thousand Dollars ($250,000). (b) The determinations of whether and when a Gross-Up Payment is required under this Article 7 shall be made by independent tax counsel (the "Tax Counsel") based on its good faith interpretation of applicable law. The amount of such Gross-Up Payment and the valuation assumptions to be utilized in arriving at such determination shall be made by an independent nationally recognized accounting firm (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. The Tax Counsel and Accounting Firm shall initially be appointed by the Company after consultation in good faith with the Executive and subject to the approval of the Executive (which approval shall not be unreasonably withheld), provided, however, that if the potential amount of the Gross-Up Payment (but for the limit in Section 7.1(a) above) could exceed Two Hundred Fifty Thousand Dollars ($250,000), the Executive shall be deemed have the opportunity to pay federal income taxes at appoint a new Tax Counsel and Accounting Firm after consultation in good faith with the highest marginal rate Company. If the Tax Counsel and Accounting Firm selected by the Company determine that the amount 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 Two Hundred Fifty Thousand Dollars ($250,000), but Executive provides an opinion of termination of the Executive's employment, the Executive shall repay to the Company, at the time a second independent Tax Counsel that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable (but for the limit in Section 7.1(a) above) could be greater than Two Hundred Fifty Thousand Dollars ($250,000) then Executive shall be entitled to such reduction (plus that portion appoint the Tax Counsel and the Accounting Firm after consultation in good faith with the Company and subject to the approval of the Gross-Up Payment attributable Company (which approval shall not be unreasonably withheld). All fees and expenses of any Tax Counsels and Accounting Firms referred to the Excise Tax, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the portion of the Gross-Up Payment being repaid above shall be borne by the Executive to the extent that such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the CodeCompany. 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 Any Gross-Up Payment, as determined as previously describedpursuant to this Article 7, shall be paid by the Company to the Executive in respect to such excess within ten (plus any interest, penalties or additions payable 10) days of the receipt of the Accounting Firm's determination. Any determinations by the Tax Counsel and Accounting Firm shall be binding upon the Company and the Executive, provided, however, if it is later determined that there has been an underpayment of Excise Tax and that Executive with respect is required to make an additional Excise Tax payment(s) on any Payment or Gross-Up Payment, the Company shall provide a similar full gross-up on such excessadditional liability, subject to the overall Two Hundred Fifty Thousand Dollars ($250,000) at the time that the amount of such excess is finally determinedlimit set forth in Section 7.1(a) above.

Gross-Up Payment. (a) In the event that the Executive becomes entitled to the any Severance Benefits Payments paid or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay payable to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 or 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 his benefit pursuant to the terms of this Agreement or any other agreement, plan or arrangement otherwise in connection with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person(“Total Payments”) shall would be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject to any Excise Tax, then the Executive will be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after the Executive’s payment of all taxes (including any interest, penalties, additional tax, or similar items imposed with respect to the Gross-Up Payment and 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 including any 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 upon 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 retains an 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 equal to such reduction the Excise Tax imposed upon the Total Payments. (plus that portion of the b) An initial determination as to whether a Gross-Up Payment attributable is required pursuant to this Agreement and the Excise Tax, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the portion amount of the that Gross-Up Payment being repaid will be made at the Company’s expense by an Accounting Firm selected by the Executive and reasonably acceptable to the extent Company. The Accounting Firm will provide its determination, together with detailed supporting calculations and documentation, to the Company and the Executive within 10 business days after the Date of Termination, or such other time as requested by the Company and the Executive. If the Accounting Firm determines that such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) 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 no 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, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time Payments, it will furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to the amount Payments. Within 10 business days after the Accounting Firm delivers its determination to the Executive, the Executive will have the right to dispute the determination. The Gross-Up Payment, if any, as determined by the Accounting Firm in accordance with the preceding provisions of such excess is finally determined.this Section, will be paid by the Company to the Executive within 5 business days of the receipt of the

Gross-Up Payment. In the event that the Executive becomes entitled to the Severance Benefits or any other benefits or payments under The term “Gross Up Payment” as used in this Agreement shall mean a payment to or on behalf of Employee which shall be sufficient to pay (other than pursuant to this Section1) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction 100% of any Excise Tax on the Total Benefits and excise tax described in this Section 11, (2) 100% of any federal, state and local income tax, Excise Tax tax and FICA social security and Medicare withholding taxes upon other employment tax on the payment provided for made to pay such excise tax as well as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by this Section, the Internal Revenue Service on Employee which are related to the timely payment of such excise tax (unless such interest or penalties are attributable to Employee’s willful misconduct or gross negligence with respect to such timely payment). A Gross Up Payment shall be equal to made by the Total Benefits. For purposes of determining whether Company promptly after either the Company or the Company’s independent accountants determine that any of the Total Benefits will be subject to the Excise Tax payments and the amount of such Excise Tax, (i) benefits called for under this Employment Agreement together with any other payments or and benefits received or made available to be received Employee 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 Company and any other agreement, plan or arrangement with the Company, any Person whose actions person will result in a Change Employee being subject to an excise tax under § 4999 of the Internal Revenue Code of 1986, as amended (which shall be referred to in Control or any Person affiliated with this Section 11 as the Company “Code”) or such Person) shall be treated an excise tax is assessed against Employee as "parachute payments" within the meaning a result of Section 280G(b)(2) of the Cod, any such payments and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject other benefits if Employee takes such action (other than waiving Employee’s right 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 any 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 Amountpayments or benefits which Employee has expressly agreed to waive under this Section 11) as the Company reasonably requests under the circumstances to mitigate Employee’s Initials: or challenge such excise tax; provided, however, if the Company or are otherwise the Company’s independent accountants make the determination described in this Section 11 and, further, determine that Employee will not be subject to any such excise tax if Employee waives Employee’s right to receive a part of such payments or benefits and such part does not exceed $10,000, Employee shall irrevocably waive Employee’s right to receive such part if an independent accountant or lawyer retained by Employee and paid by the Excise Tax, (ii) Company agrees with the amount of determination made by the Total Benefits which shall be treated as subject Company or the Company’s independent accountants with respect 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 effect of such reduction in Excise Tax is finally determined, the portion payments or benefits. Any determinations under this Section 11 shall be made in accordance with § 280G of the Gross-Up Payment attributable Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law and, if the Company reasonably requests that Employee take action to mitigate or challenge, or to mitigate and challenge, any such reduction tax or assessment (plus that portion other than waiving Employee’s right to any payments or benefits in excess of the Gross-Up Payment attributable payments or benefits which Employee has expressly agreed to the Excise Tax, federal, state waive under this Section 11) and local income taxes and FICA and Medicare withholding taxes imposed on the portion of the Gross-Up Payment being repaid by the Executive to the extent that Employee complies with such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) 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)request, the Company shall make an additional Gross-Up Paymentprovide Employee with such information and such expert advice and assistance from the Company’s independent accountants, determined lawyers and other advisors as previously describedEmployee may reasonably request and shall pay for all expenses incurred in effecting such compliance and any related fines, to the Executive in respect to such excess (plus any interestpenalties, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedinterest and other assessments.

Gross-Up Payment. (a) In the event that the any amount or benefits made or provided to Executive becomes entitled to the Severance Benefits or any above and under all other benefits or payments under this Agreement (other than pursuant to this Section) by reason plans and programs of the accelerated vesting of stock options thereunder Company (together, the "Total BenefitsCovered Payments")) is determined to constitute a Parachute Payment, and as such term is defined in the event that any Section 280G(b)(2) of the Total Benefits will be subject to the Excise TaxInternal Revenue Code, the Company shall pay to Executive, prior to the Executive time any Internal Revenue Code Section 4999 excise tax ("Excise Tax") is payable with respect to any such Covered Payment, an additional amount which is equal to the Excise Tax on the Covered Payment (the "Initial Gross-Up"), plus the amount of income tax and Excise Tax payable by Executive with respect to the Initial Gross-Up Payment(the "Second Gross-Up"), the amount of income tax and Excise Tax payable by Executive with respect to the Second Gross-Up (the "Third Gross-Up"), the amount of income tax and Excise Tax payable by Executive with respect to the Third Gross-Up (the "Fourth Gross-Up"), and the amount of income tax and Excise Tax payable by Executive with respect to the Fourth Gros▇-▇▇. (▇) The determination of whether the Covered Payment constitutes a Parachute Payment and, if so, the amount to be paid to Executive and the time of payment pursuant to this paragraph 20 shall be made by an independent auditor (the "Auditor") jointly selected by the Company and Executive and paid by the Company. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Company or any of its Affiliates. If Executive and the Company cannot agree on the firm to serve as the Auditor, then Executive and the Company shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor. (c) In the event that upon any audit by the Internal Revenue Service, or by a state or local taxing authority, of the Covered Payment or the Gross-Up payments, a change is finally determined to be required in the amount of taxes paid by the Executive, appropriate adjustments will be made under this Agreement such that the net amount retained by which is payable to Executive after taking into account the Executive, after deduction provisions 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 Cod, and all "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") 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) section 4999 of the Code in excess will reflect the intent of the Base Amountparties as expressed in subparagraph (a) above, 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 manner 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 portion of 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 federal, state or local income taxes) 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, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedAuditor.

Gross-Up Payment. In (a) To the event extent that the Executive becomes entitled to the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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) the grant of the Restricted Shares under Section 7 hereof or (ii) the payment of any Severance Payment (or other payments payment 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" benefit within the meaning of Section 280G(b)(2) 280G of the CodInternal Revenue Code of 1986, and all "excess parachute payments" within as amended (the meaning “Code”)) under this Agreement (collectively, the Section 280G(b)(1“Payments”) shall would 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 taxes imposed against Executive under 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 including any excise tax imposed 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) 4999 of the Code. For purposes ) and any state or local tax code or regulations, if applicable, (collectively, the “Taxes”), then the Company shall pay, and Executive will be entitled to receive, an additional payment (the “Gross-Up Payment”) in an amount such that after payment by the Executive of determining the amount of all applicable Taxes including any Taxes imposed upon 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 retains an 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 equal to the Taxes imposed by reason of the Payments. For the avoidance of doubt, it is further provided that the Company shall pay all Taxes as a result of any final determination by the Internal Revenue Service that the right of first refusal granted to the Company in the Restricted Stock Agreement does not decrease the value of the Restricted Shares as of the date of the grant to the amount agreed upon by the Company and the Executive. To the extent Executive incurs any interest or penalties with respect to such reduction Taxes (plus that portion other than interest and penalties due to Executive’s failure to timely make any applicable election, file a tax return or pay taxes shown on his return) (the “Expenses”), then the Company shall reimburse Executive for such Expenses within five (5) days after Executive incurs such Expenses. This reimbursement obligation shall remain in effect during the applicable statute of limitations applicable to any such Expenses, and the amount of Expenses eligible for reimbursement during any taxable year of Executive will not affect the amount of Expenses eligible for reimbursement in any other taxable year of Executive. This right to reimbursement is not subject to liquidation or exchange for another benefit. To the extent the reimbursement by the Company of any Expenses is taxable to Executive, such taxable amount shall be subject to a Gross-Up Payment attributable to by the Excise Tax, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the portion of the Company as provided herein. (b) The Company shall bear any expense necessary in determining whether a Gross-Up Payment being repaid by the Executive is required pursuant to the extent that such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Codethis Agreement. 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 The Gross-Up Payment, determined as previously describedif any, shall be paid by the Company to the Executive in respect to such excess within five (plus any interest, penalties or additions payable 5) days after remittance by the Executive with respect of the applicable Taxes to such excess) at the time that Internal Revenue Service and the amount submission to the Company of appropriate documentation of such excess is finally determinedremittance as may be required by the Company.

Gross-Up Payment. In the event that the (i) Executive becomes entitled to the Severance Benefits or any other payment and benefits or payments provided under paragraph 1 of this Agreement (other than pursuant to this Sectionthe “Change of Control Payment”) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits Change of Control Payment will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code, or any successor provision, or (ii) any payments or benefits received or to be received by Executive pursuant to the terms of any other plan, arrangement or agreement (the “Benefit Payments”) will be subject to the Excise Tax, the Company Employer shall pay to the Executive an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Benefits Change of Control Payment and the Benefit Payments, and any federal, state and local income tax, tax and Excise Tax and FICA and Medicare withholding taxes upon the payment provided for by this Sectionparagraph 3, shall be equal to the Total BenefitsChange of Control Payment and the Benefit Payments. For purposes of determining whether any of the Total Benefits Change of Control Payment or the Benefit 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 change in Control control of Employer or the Executive's termination of employment ’s Separation from Service (whether pursuant to the terms of this Agreement or any other agreementplan, plan arrangement or arrangement agreement with the CompanyEmployer, any Person person whose actions result in a Change change in Control control or any Person person affiliated with the Company Employer or such Personpersons) shall be treated as "“parachute payments" ” within the meaning of Section 280G(b)(2) of the CodCode, and all "“excess parachute payments" ” within the meaning the of Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless except to the extent that, in the opinion of tax counsel ("Tax Counsel") selected by the Company's independent auditors and acceptable to the ExecutiveBoard, 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, Code, (ii) the amount of the Total Benefits which Change of Control Payment and the Benefit Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Change of Control Payment and the Benefits reduced by the amount of such Total Benefits that in the opinion of Tax Counsel are not parachute payments, Payments or (B) the amount of excess parachute payments within the meaning of Section Sections 280G(b)(1) and (4) (after applying clause (i), above), and and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by tax counsel, selected by the Company's independent auditors Board, in accordance with the principles of sections 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 rates of taxation in the state and locality of the Executive's ’s residence on the Date date of Terminationseparation, net of the maximum 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)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 the Executive's employment’s Separation from Service, the Executive shall repay to the Company, Employer at the that time that the amount of such reduction in Excise Tax as is finally determined, determined to be 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 portion of 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 federal, state or local income taxes) 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 ’s Separation from Service (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 Employer shall make an additional Grossgross-Up Payment, determined as previously described, up payment to the Executive in respect to of such excess (plus any interest, penalties or additions interest payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. Any payment to be made to Executive pursuant to this paragraph 3 shall be made within 30 days after Executive remits the related taxes.

Gross-Up Payment. In the event that the Executive becomes entitled to the Severance Benefits or any other benefits or payments under The term "Gross Up Payment" as used in this Agreement shall mean a payment to or on behalf of Employee which shall be sufficient to pay (other than pursuant to this Section1) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction 100% of any Excise Tax on the Total Benefits and excise tax described in this Section 11, (2) 100% of any federal, state and local income tax, Excise Tax tax and FICA social security and Medicare withholding taxes upon other employment tax on the payment provided for made to pay such excise tax as well as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by this Section, the Internal Revenue Service on Employee which are related to the timely payment of such excise tax (unless such interest or penalties are attributable to Employee's willful misconduct or gross negligence with respect to such timely payment). A Gross Up Payment shall be 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 made 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 Company promptly after either the Company or such Person) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, and all "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") selected by the Company's independent auditors accountants determine that any payments and acceptable benefits called for under this Employment Agreement together with any other payments and benefits made available to Employee by the ExecutiveCompany and any other person will result in Employee being subject to an excise tax under Section 4999 of the Internal Revenue Code of 1986, as amended (which shall be referred to in this Section 11 as the "Code") or such an excise tax is assessed against Employee as a result of any such payments and other benefits if Employee takes such action (other than waiving Employee's Initials: --------------- Employee's right to any 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 Amountpayments or benefits which Employee has expressly agreed to waive under this Section 11) as the Company reasonably requests under the circumstances to mitigate or challenge such excise tax; provided, however, if the Company 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 accountants make the determination described in accordance this Section 11 and, further, determine that Employee will not be subject to any such excise tax if Employee waives Employee's right to receive a part of such payments or benefits and such part does not exceed $10,000, Employee shall irrevocably waive Employee's right to receive such part if an independent accountant or lawyer retained by Employee and paid by the Company agrees with the principles of sections 280G(d)(3) and (4) of determination made by the Code. For purposes of determining Company or 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 ExecutiveCompany'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 independent accountants with respect 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 effect of such reduction in Excise Tax is finally determined, the portion payments or benefits. Any determinations under this Section 11 shall be made in accordance with Section 280G of the Gross-Up Payment attributable Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law and, if the Company reasonably requests that Employee take action to mitigate or challenge, or to mitigate and challenge, any such reduction tax or assessment (plus that portion other than waiving Employee's right to any payments or benefits in excess of the Gross-Up Payment attributable payments or benefits which Employee has expressly agreed to the Excise Tax, federal, state waive under this Section 11) and local income taxes and FICA and Medicare withholding taxes imposed on the portion of the Gross-Up Payment being repaid by the Executive to the extent that Employee complies with such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) 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)request, the Company shall make an additional Gross-Up Paymentprovide Employee with such information and such expert advice and assistance from the Company's independent accountants, determined lawyers and other advisors as previously describedEmployee may reasonably request and shall pay for all expenses incurred in effecting such compliance and any related fines, to the Executive in respect to such excess (plus any interestpenalties, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedinterest and other assessments.

Gross-Up Payment. In (a) To the event extent that the Executive becomes entitled to the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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) the payment of any Severance Payment, (ii) vesting under the grant of any stock grant or option provided under Section 6 hereof, or (iii) the payment of any other 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" benefit within the meaning of Section 280G(b)(2) 280G of the CodInternal Revenue Code of 1986, as amended (the “Code”) under any other agreement (collectively, “Payments”) would result in any taxes being imposed against Executive under Section 4999 of the Code (the “Excise Taxes”), then the Company shall pay, and all "excess parachute payments" within Executive will be entitled to receive, a payment (the meaning the Section 280G(b)(1“Gross-Up Payment”) in an amount equal to such Excise Taxes, plus an amount as shall be treated as required to hold Executive harmless from any tax liability relating to the payment of such Gross-Up Payment. To the extent Executive incurs any interest or penalties with respect to such Excise Taxes (other than interest and penalties due to Executive’s failure to timely make any applicable election, file a tax return or pay taxes shown on his return) (the “Expenses”), then the Company shall reimburse Executive for such Expenses within five (5) days after Executive incurs such Expenses. This reimbursement obligation shall remain in effect during the applicable statute of limitations applicable to any such Expenses, and the amount of Expenses eligible for reimbursement during any taxable year of Executive will not affect the amount of Expenses eligible for reimbursement in any other taxable year of Executive. This right to reimbursement is not subject to liquidation or exchange for another benefit. To the Excise Tax, unless in extent the opinion of tax counsel ("Tax Counsel") selected reimbursement by the Company's independent auditors and acceptable Company of any Expenses is taxable 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 taxable amount shall be 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 a Gross-Up Payment by the amount of such Total Benefits that Company as provided herein. (b) The Company shall bear any expense necessary 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 nondetermining whether a Gross-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 CodeUp Payment is required pursuant to this Agreement. For purposes of determining the amount of the The Gross-Up Payment, the Executive if any, 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 paid by the Executive). In the event that the Excise Tax is subsequently determined Company 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 within five (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 portion of the Gross-Up Payment being repaid 5) days after remittance by the Executive of the applicable Excise Taxes to the extent that such repayment results in a reduction in Excise Tax, FICA Internal Revenue Service and Medicare withholding taxes and/or federal, state or local income taxes) plus interest on the amount submission to the Company of appropriate documentation 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 remittance as may be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable required by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedCompany.

Gross-Up Payment. In the event that If the Executive becomes entitled to payments and benefits following a Change in Control under Section 6(f) or the Severance Benefits or any other benefits or payments under this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after 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 accelerate following a Change in Control as provided in any stock option agreement or certificate, the Company will cause its independent auditors promptly to review, at the Company’s sole expense, the applicability of Code Section 4999 to any payment or distribution of any type by the Company to or for the Executive's termination of employment (’s benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, any stock option agreement or certificate or otherwise (the “Total Payments”). If the auditor determines that the Total Payments result in an excise tax imposed by Code Section 4999 or any other agreementcomparable state or local law, plan or arrangement with the Company, any Person whose actions result in a Change in Control or any Person affiliated 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 “Excise Tax”), the Company or such Personwill make an additional cash payment (a “Gross-Up Payment”) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject to the Executive within 10 days after such determination equal to an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any 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 imposed upon 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 would retain an 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 equal to such reduction (plus that portion the Excise Tax imposed upon the Total Payments. For purposes of the foregoing determination, the Executive’s tax rate will be deemed to be the highest statutory marginal state and federal tax rate (on a combined basis) then in effect. If no determination by the Company’s auditors is made prior to the time the Executive is required to file a tax return reflecting the Total Payments, the Executive will be entitled to receive from the Company a Gross-Up Payment attributable calculated on the basis of the Excise Tax the Executive reported in such tax return, within 10 days after the later of the date on which the Executive files such tax return or the date on which the Executive provides a copy thereof to the Company. In all events, if any tax authority determines that a greater Excise TaxTax should be imposed upon the Total Payments than is determined by the Company’s independent auditors or reflected in the Executive’s tax return pursuant to this Section 6(g), federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the portion of Executive will be entitled to receive from the Company the full Gross-Up Payment being repaid by calculated on the Executive to the extent that such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) plus interest on basis of 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 be payable by such tax authority within 10 days after 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), Executive notifies the Company shall make an additional Gross-Up Payment, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determineddetermination.

Gross-Up Payment. In the event that the Executive becomes entitled to the Severance Benefits or any other benefits or payments under The term "Gross Up Payment" as used in this Agreement shall mean a payment to or on behalf of Employee which shall be sufficient to pay (other than pursuant to this Section1) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction 100% of any Excise Tax on the Total Benefits and excise tax described in this Section 8.05, (2) 100% of any federal, state and local income tax, Excise Tax tax and FICA social security and Medicare withholding taxes upon other employment tax on the payment provided for made to pay such excise tax as well as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by this Section, the Internal Revenue Service on Employee which are related to the timely payment of such excise tax (unless such interest or penalties are attributable to Employee's willful misconduct or gross negligence with respect to such timely payment). A Gross Up Payment shall be 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 made 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 Company promptly after either the Company or such Person) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, and all "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") selected by the Company's independent auditors accountants determine that any payments and acceptable benefits called for under this Employment Agreement together with any other payments and benefits made available to Employee by the ExecutiveCompany and any other person will result in Employee being subject to an excise tax under Section 4999 of the Internal Revenue Code of 1986, as amended (which shall be referred to in this Section 8.05 as the "Code") or such an excise tax is assessed against Employee as a result of any such payments and other benefits if Employee takes such action (other than waiving Employee's right to any 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 Amountpayments or benefits which Executive has expressly agreed to waive under this Section 8.05) as the Company reasonably requests under the circumstances to mitigate or challenge such excise tax; provided, however, if the Company 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 accountants make the determination described in accordance this Section 8.05 and, further, determine that Employee will not be subject to any such excise tax if Employee waives Employee's right to receive a part of such payments or benefits and such part does not exceed Employee's Initials: ------------------- 6 $10,000, Employee shall irrevocably waive Employee's right to receive such part if an independent accountant or lawyer retained by Employee and paid by the Company agrees with the principles of sections 280G(d)(3) and (4) of determination made by the Code. For purposes of determining Company or 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 ExecutiveCompany'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 independent accountants with respect 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 effect of such reduction in Excise Tax is finally determined, the portion payments or benefits. Any determinations under this Section 8.05 shall be made in accordance with Section 280G of the Gross-Up Payment attributable Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law and, if the Company reasonably requests that Employee take action to mitigate or challenge, or to mitigate and challenge, any such reduction tax or assessment (plus that portion other than waiving Employee's right to any payments or benefits in excess of the Gross-Up Payment attributable payments or benefits which Employee has expressly agreed to the Excise Tax, federal, state waive under this Section 8.05) and local income taxes and FICA and Medicare withholding taxes imposed on the portion of the Gross-Up Payment being repaid by the Executive to the extent that Employee complies with such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) 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)request, the Company shall make an additional Gross-Up Paymentprovide Employee with such information and such expert advice and assistance from the Company's independent accountants, determined lawyers and other advisors as previously describedEmployee may reasonably request and shall pay for all expenses incurred in effecting such compliance and any related fines, to the Executive in respect to such excess (plus any interestpenalties, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedinterest and other assessments.

Gross-Up Payment. In the event that the The term “Gross Up Payment” as used in this Employment Agreement shall mean a payment to or on behalf of Executive becomes entitled which shall be sufficient to the Severance Benefits or pay (1) 100% of any other benefits or payments under excise tax described in this Agreement (other than pursuant to this Section) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"§4.2(g), and in the event that any (2) 100% of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Tax tax and FICA social security and Medicare withholding taxes upon other employment tax on the payment provided for made to pay such excise tax as well as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by this Section, the Internal Revenue Service on Executive which are related to the timely payment of such excise tax (unless such interest or penalties are attributable to Executive’s willful misconduct or gross negligence with respect to such timely payment). A Gross Up Payment shall be equal to made by the Total Benefits. For purposes of determining whether Company promptly after either the Company or the Company ‘s independent accountants determine that any of the Total Benefits will be subject to the Excise Tax payments and the amount of such Excise Tax, (i) benefits called for under this Employment Agreement together with any other payments or and benefits received or made available to be received Executive 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 Company and any other agreement, plan or arrangement with the Company, any Person whose actions person will result in a Change Executive’s being subject to an excise tax under § 4999 of the Internal Revenue Code of 1986, as amended (which shall be referred to in Control or any Person affiliated with this § 4.2(g) as the Company “Code”) or such Person) shall be treated an excise tax is assessed against Executive as "parachute payments" within the meaning a result of Section 280G(b)(2) of the Cod, any such payments and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject other benefits if Executive takes such action (other than waiving Executive’s right 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 any 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 Amountpayments or benefits which Executive has expressly agreed to waive under this § 4.2(g)) as the Company reasonably requests under the circumstances to mitigate or challenge such excise tax; provided, however, if the Company or are otherwise the Company’s independent accountants make the determination described in this § 4.2(g) and, further, determine that Executive will not be subject to any such excise tax if Executive waives Executive’s right to receive a part of such payments or benefits and such part does not exceed $25,000, Executive shall irrevocably waive Executive’s right to receive such part if an independent accountant or lawyer retained by Executive and paid by the Excise Tax, (ii) Company agrees with the amount of determination made by the Total Benefits which shall be treated as subject Company or the Company’s independent accountants with respect 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 effect of such reduction in Excise Tax is finally determined, the portion payments or benefits. Any determinations under this §4.2(g) shall be made in accordance with § 280G of the Gross-Up Payment attributable Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law and, if the Company reasonably requests that Executive take action to mitigate or challenge, or to mitigate and challenge, any such reduction tax or assessment (plus that portion other than waiving Executive’s right to any payments or benefits in excess of the Gross-Up Payment attributable payments or benefits which Executive has expressly agreed to the Excise Tax, federal, state waive under this §4.2(g)) and local income taxes and FICA and Medicare withholding taxes imposed on the portion of the Gross-Up Payment being repaid by the Executive to the extent that complies with such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) 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)request, the Company shall make an additional Gross-Up Payment, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the provide Executive with respect to such excess) at information and such expert advice and assistance from the time that the amount of Company ‘s independent accountants, lawyers and other advisors as Executive may reasonably request and shall pay for all expenses incurred in effecting such excess is finally determinedcompliance and any related fines, penalties, interest and other assessments.

Gross-Up Payment. In the event that the Executive becomes entitled to the Severance Benefits severance benefits described in Sections 5(a) and 5(b) or any other benefits or payments under this Agreement or any other agreement, plan, instrument or obligation in whatever form of the Company or its subsidiaries or affiliates (other than pursuant to this Section) including by reason of the accelerated vesting of stock options equity awards or thereunder (together, the "“Total Benefits"”), and in the event that any of the Total Benefits will be subject to the excise tax under Code Section 4999, including interest, penalties or other excise tax thereon (the “Excise Tax”), then either (i) the amount of the Total Benefits shall be reduced if the Executive would retain a greater after-tax amount by virtue of such reduction than the Executive would retain if the Excise Tax were imposed (the “Reduction Scenario”) or (ii) if the Reduction Scenario does not apply because the Executive would not retain a greater amount under the Reduction Scenario, the Company shall pay to the Executive an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive, after 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 ’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 CodCode, and all "“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"”) selected by the Company's ’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 AmountAmount (as defined in the Code), 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 ’s independent auditors in accordance with the principles of sections 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 ’s residence on the Date date of Terminationtermination, 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 portion of 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 federal, state or local income taxes) 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, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined.

Gross-Up Payment. In the event that the Executive becomes entitled to the Severance Benefits or any other benefits or payments under The term “Gross Up Payment” as used in this Agreement shall mean a payment to or on behalf of Employee which shall be sufficient to pay (other than pursuant to this Section1) by reason of the accelerated vesting of stock options thereunder (together, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction 100% of any Excise Tax on the Total Benefits and excise tax described in this Section 11, (2) 100% of any federal, state and local income tax, Excise Tax tax Employee’s Initials: 12 and FICA social security and Medicare withholding taxes upon other employment tax on the payment provided for made to pay such excise tax as well as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by this Section, the Internal Revenue Service on Employee which are related to the timely payment of such excise tax (unless such interest or penalties are attributable to Employee’s willful misconduct or gross negligence with respect to such timely payment). A Gross Up Payment shall be equal made by the Company in a lump sum at the Company’s option either directly to the Total Benefits. For purposes of determining whether United States Treasury or to Employee after either the Company or the Company’s independent accountants determine that any of the Total Benefits will be subject to the Excise Tax payments and the amount of such Excise Tax, (i) benefits called for under this Agreement together with any other payments or and benefits received or made available to be received Employee 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 Company and any other agreement, plan or arrangement with the Company, any Person whose actions person will result in a Change in Control or any Person affiliated with Employee being subject to an excise tax under § 4999 of the Company Code or such Person) shall be treated an excise tax is assessed against Employee as "parachute payments" within the meaning a result of Section 280G(b)(2) of the Cod, any such payments and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject other benefits if Employee takes such action (other than waiving Employee’s right 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 any 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 Amountpayments or benefits which Employee has expressly agreed to waive under this Section 11) as the Company reasonably requests under the circumstances to mitigate or challenge such excise tax; provided, however, if the Company or are otherwise the Company’s independent accountants make the determination described in this Section 11 and, further, determine that Employee will not be subject to any such excise tax if Employee waives Employee’s right to receive a part of such payments or benefits and such part does not exceed $10,000, Employee shall irrevocably waive Employee’s right to receive such part if an independent accountant or lawyer retained by Employee and paid by the Excise Tax, (ii) Company agrees with the amount of determination made by the Total Benefits which shall be treated as subject Company or the Company’s independent accountants with respect 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 effect of such reduction in Excise Tax is finally determined, the portion payments or benefits. Any determinations under this Section 11 shall be made in accordance with § 280G of the Gross-Up Payment attributable Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law and, if the Company reasonably requests that Employee take action to mitigate or challenge, or to mitigate and challenge, any such reduction tax or assessment (plus that portion other than waiving Employee’s right to any payments or benefits in excess of the Gross-Up Payment attributable payments or benefits which Employee has expressly agreed to the Excise Tax, federal, state waive under this Section 11 and local income taxes and FICA and Medicare withholding taxes imposed on the portion of the Gross-Up Payment being repaid by the Executive to the extent that Employee complies with such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) 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)request, the Company shall make an additional Gross-Up Paymentprovide Employee with such information and such expert advice and assistance from the Company’s independent accountants, determined lawyers and other advisors as previously describedEmployee may reasonably request and shall pay for all expenses incurred in effecting such compliance and any related fines, to the Executive in respect to such excess (plus any interestpenalties, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedinterest and other assessments.

Gross-Up Payment. In If any payment to Employee under the event that Employment Contract, or under any other employee benefit agreement or plan of the Executive becomes entitled to Company upon termination of employment (in the Severance Benefits aggregate, “Total Payments”), would constitute an “excess parachute payment” as defined in Section 280G (or any other benefits or payments under this Agreement (other than pursuant to this Sectionsuccessor provision) by reason of the accelerated vesting of stock options thereunder (togetherInternal Revenue Code, the "Total Benefits"), and in the event that any of the Total Benefits will be subject to the Excise Tax, then the Company shall pay to the Executive Employee an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive, Employee after deduction or payment of any excise tax imposed under Section 4999 (or any successor provision) of the Internal Revenue Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax on the Total Benefits and Tax”) (but not any federal, state and or local income tax, or employment tax other than the Excise Tax and FICA and Medicare withholding taxes upon Tax) on the payment provided for by this SectionTotal Payments, shall be equal to the Total BenefitsPayments. 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 Cod, and all "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") 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 The parties agree 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 shall be paid to Employee in a lump sum on the date that is six (6) months after the date of Employee’s termination, provided, however, that to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality extent that a portion of the Executive's residence on the Date Total Payments is not yet due to Employee in a particular tax year 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 determinedEmployee, the portion of the Gross-Up Payment attributable applicable to such reduction (plus that portion of the Total Payments shall be payable at the time such portion of the Total Payments is due. For purposes of this provision, the term “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Internal Revenue Code and such “parachute payments” shall be valued as provided therein. The Company and Employee shall work in good faith together to minimize any such excise tax, interest charges, or penalties, but without prejudice to their respective rights set forth in the Employment Contract. The Employee and the Company agree and acknowledge that this provision shall not apply to any payments made by the Company pursuant to the Asset Purchase Agreement, and no Gross-Up Payment attributable to the Excise Tax, federal, state and local income taxes and FICA and Medicare withholding taxes imposed shall be due on the portion of the Gross-Up Payment being repaid by the Executive to the extent that any such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) 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, determined as previously described, to the Executive in respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determinedpayments.