Common use of Gross-Up Payments Clause in Contracts

Gross-Up Payments. Anything in this Agreement to the contrary notwithstanding, in the event that a severance payment is made under this Agreement and it shall be determined (as hereafter provided) that any payment (other than the Gross-Up Payments provided for herein) or distribution by Employer or any of its affiliates to or for the benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, or the lapse or termination of any restriction on, or the vesting or exercisability of any of the foregoing (a "Payment"), excluding, however, any stock option or right in respect of restricted stock, would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto), by reason of being considered "contingent on a change in ownership or control" of Employer, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereafter collectively referred to as the "Excise Tax"), then the Employee shall be entitled to receive an additional payment or payments (collectively, a "Gross-Up Payment"); provided, however, that no Gross-Up Payment shall be made with respect to the Excise Tax, if any, imposed upon (i) any stock option, including without limitation any incentive stock option, as defined by Section 422 of the Code ("ISO") granted prior to the execution of this Agreement or (ii) any stock appreciation or similar right, whether or not limited, granted in tandem with an ISO described in clause (i). The Gross-Up Payment shall be in an amount such that, after payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including an Excise Tax imposed upon the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment. The procedural

Gross-Up Payments. Anything in this Agreement to the contrary ----------------- notwithstanding, in the event that a severance payment is made under this Agreement and it shall be determined (as hereafter provided) that any payment (other than the Gross-Up Payments provided for herein) or distribution by Employer or any of its affiliates to or for the benefit of the EmployeeExecutive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, or the lapse or termination of any restriction on, or the vesting or exercisability of any of the foregoing (a "Payment"), excluding, however, any stock option or right in respect of restricted stock, would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto), by reason of being considered "contingent on a change in ownership or control" of Employer, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereafter collectively referred to as the "Excise Tax"), then the Employee Executive shall be entitled to receive an additional payment or payments (collectively, a "Gross-Up Payment"); provided, however, that no ------------------ Gross-Up Payment shall be made with respect to the Excise Tax, if any, imposed upon (i) any stock option, including without limitation any incentive stock option, as defined by Section 422 of the Code ("ISO") granted prior to the execution of this Agreement or (ii) any stock appreciation or similar right, whether or not limited, granted in tandem with an ISO described in clause (i). The Gross-Up Payment shall be in an amount such that, after payment by the Employee Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including an Excise Tax imposed upon the Gross-Up Payment, the Employee Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment. The proceduralprocedural provisions relating to Gross-Up Payments set forth in Annex A hereto are hereby incorporated herein by this reference.

Gross-Up Payments. Anything in this Agreement to the contrary notwithstanding, in (i) In the event that a severance payment is made under this Agreement and it shall be determined (as hereafter provided) that any payment (other than or the Gross-Up Payments provided for herein) value of any benefit received or distribution to be received by Employer the Executive in connection with the Executive's Termination or any contingent upon a Change of its affiliates to or for the benefit Control of the Employee, Company (whether paid received or payable or distributed or distributable to be received pursuant to the terms of this Agreement (the "Agreement Payments") or otherwise pursuant to or by reason of any other agreement, policy, plan, program arrangement or arrangementagreement of the Company, its successors, any person whose actions result in a Change of Control of the Company or the lapse or termination of any restriction on, or the vesting or exercisability of person affiliated with any of them (or which, as a result of the foregoing completion of the transactions causing a Change of Control, will become affiliated with any of them) (a "PaymentOther Payments" and, together with the Agreement Payments, the "Payments"), excluding, however, any stock option or right in respect of restricted stock, ) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto)comparable federal, by reason of being considered "contingent on a change in ownership or control" of Employer, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or taxesexcise tax, together with any such interest and penalties, being hereafter are hereinafter collectively referred to as the "Excise Tax"), then as determined as provided below, the Employee Company shall be entitled pay to receive the Executive an additional payment or payments amount (collectively, a the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of the Excise Tax on Agreement Payments and Other Payments and any federal, state and local income tax and Excise Tax upon the payment provided for by this Subsection IV(e)(i); provided, howeverand any interest, penalties or additions to tax payable by the Executive with respect thereto shall be equal to the total present value of the Agreement Payments and Other Payments at the time such Payments are to be made. The intent of the parties is that no the Company shall be solely responsible for and shall pay, any Excise Tax on any Payments and Gross-Up Payment shall be made with respect to the Excise Taxand any income and employment taxes (including, if anywithout limitation, penalties and interest) imposed upon (i) on any stock option, including without limitation any incentive stock option, as defined by Section 422 of the Code ("ISO") granted prior to the execution of this Agreement or (ii) any stock appreciation or similar right, whether or not limited, granted in tandem with an ISO described in clause (i). The Gross-Up Payment shall be in an amount such that, after payment Payments as well as any loss of deduction caused by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including an Excise Tax imposed upon the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment. The procedural.

Gross-Up Payments. Anything in this Agreement to If the contrary notwithstanding, in the event that a severance payment is made provided under this Agreement and it shall be determined (as hereafter providedthe “Contract Payment”) that any payment (other than the Gross-Up Payments provided for herein) or distribution by Employer or any of its affiliates to or for the benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, or the lapse or termination of any restriction on, or the vesting or exercisability of any of the foregoing (a "Payment"), excluding, however, any stock option or right in respect of restricted stock, would be is subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (“Code”), Company shall pay Employee on or before the "Code"fifth day following the date of termination, an additional amount (the “Gross-Up Payment”) such that the net amount retained by Employee, after deduction of any Excise Tax on the Contract Payment and such other Total Payments (as defined below) and any federal and state and local income tax and Excise Tax upon the payment provided for by this Section, shall be equal to the Contract Payment and such other Total Payments. For purposes of determining whether any of the payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or benefits received or to be received by Employee in connection with a Change of Control of Company or Employee’s termination of employment, whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with Company, its successors, any person whose actions result in a Change of Control of Company or any corporation affiliated (or any successor provision thereto)which, by reason as a result of being considered "contingent on the completion of a change in ownership or control" transaction causing a Change of EmployerControl, will become affiliated) with Company within the meaning of Section 280G 1504 of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penaltiesthe Contract Payment, being hereafter collectively referred to as the "Excise Tax"), then the Employee “Total Payments”) shall be entitled to receive an additional payment or payments (collectivelytreated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, a "Gross-Up Payment"); provided, however, that no Gross-Up Payment and all “excess parachute payments” within the meaning of Section 280G(b)(1) shall be made with respect treated as subject to the Excise Tax, if anyunless in the opinion of tax counsel selected by Company and acceptable to Employee, imposed upon whose acceptance shall not be unreasonably withheld, the Total Payments (iin whole or in part) any stock optiondo not constitute parachute payments, including without limitation any incentive stock option, as defined by or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 422 280G(b)(4) of the Code ("ISO"either in their entirety or in excess of the base amount within the meaning of Section 280G(b)(3) granted prior of the Code, or are otherwise not subject to the execution of this Agreement or Excise Tax, (ii) any stock appreciation the amount of the Total Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or similar right, whether or not limited, granted in tandem with an ISO described in (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i). The Gross, above), and (iii) the value of any non-Up Payment cash benefits or any deferred payment or benefit shall be determined by Company’s independent auditors in an accordance with the principles of Sections 280G(b)(3) and (4) of the Code. For purposes of determining the amount such that, after payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including an Excise Tax imposed upon the Gross-Up Payment, Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Employee’s residence on the date of termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of Employee’s employment, Employee retains an shall repay to Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment equal attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed upon on the Gross-Up Payment being repaid by Employee if such repayment results in a reduction in Excise Tax and/or a federal state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(d) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of Employee’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 procedural), Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable with respect to such excess) at the time that the amount of such excess is finally determined.

Gross-Up Payments. Anything in this Agreement to the contrary ----------------- notwithstanding, in the event that a severance payment is made under this Agreement and it shall be determined (as hereafter provided) that any payment (other than the Gross-Up Payments provided for herein) or distribution by Employer the Company or any of its affiliates to or for the benefit of the EmployeeExecutive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, or the lapse or termination of any restriction on, or the vesting or exercisability of any of the foregoing (a "Payment"), excluding, however, any stock option or right in respect of restricted stock, would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto), by reason of being considered "contingent on a change in ownership or control" of Employerthe Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereafter collectively referred to as the "Excise Tax"), then the Employee Executive shall be entitled to receive an additional payment or payments (collectively, a "Gross-Up Payment"); provided, however, that no Gross-Up Payment shall be made with respect to the Excise Tax, if any, imposed upon (i) any stock option, including without limitation any incentive stock option, as defined by Section 422 of the Code ("ISO") granted prior to the execution of this Agreement or (ii) any stock appreciation or similar right, whether or not limited, granted in tandem with an ISO described in clause (i). The Gross-Up Payment shall be in an amount such that, after payment by the Employee Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including an Excise Tax imposed upon the Gross-Up Payment, the Employee Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment. The proceduralprocedural provisions relating to Gross-Up Payments that are set forth in Appendix A hereto are hereby incorporated herein by this reference.

Gross-Up Payments. (a) Anything in this Agreement to the contrary notwithstandingnotwithstanding and except as set forth below, in the event that a severance payment is made under this Agreement and it shall be determined (as hereafter provided) that any payment (other than the Gross-Up Payments provided for herein) or distribution by Employer or any of its affiliates the Company to or for the benefit of the Employee, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant otherwise, but determined without regard to or by reason of any other agreement, policy, plan, program or arrangement, or the lapse or termination of any restriction on, or the vesting or exercisability of any of the foregoing additional payments required under this Agreement) (a "“Payment"), excluding, however, any stock option or right in respect of restricted stock, ”) would be subject to the excise tax imposed by Code Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto), by reason of being considered "contingent on a change in ownership or control" of Employer, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties are incurred by the Executive with respect to such excise tax (such tax or taxesexcise tax, together with any such interest and penalties, being hereafter are hereinafter collectively referred to as the "“Excise Tax"”), then the Employee Executive shall be entitled to receive an additional payment or payments (collectively, a "“Gross-Up Payment"); provided, however, ”) in an amount such that no after payment by the Executive of all taxes imposed upon the Gross-Up Payment shall be made with respect to the Excise Tax, if any, imposed upon (i) any stock option, including without limitation any incentive stock option, as defined by Section 422 of the Code ("ISO") granted prior to the execution of this Agreement or (ii) any stock appreciation or similar right, whether or not limited, granted in tandem with an ISO described in clause (i). The Gross-Up Payment shall be in an amount such that, after payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxestaxes but excluding any taxes or interest imposed by Section 409A of the Code), including an Excise Tax imposed upon the Gross-Up Payment, the Employee Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. This provision is intended to override the cut-back provisions of Section 7.7 of the Plan. Notwithstanding the foregoing provisions of this Section 13, if it is determined that the Executive is entitled to a Gross-Up Payment. The procedural, but that the Payments do not exceed by $25,000 the greatest amount that could be paid to the Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no Gross-Up Payment shall be made to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount.

Gross-Up Payments. Anything in this Agreement to If the contrary notwithstanding, in the event that a severance payment is made provided under this Agreement and it shall be determined (as hereafter provided) that any payment (other than the Gross-Up Payments provided for herein) or distribution by Employer or any of its affiliates to or for the benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms Section 14 of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, or (the lapse or termination of any restriction on, or the vesting or exercisability of any of the foregoing (a "“Contract Payment"), excluding, however, any stock option or right in respect of restricted stock, would be ”) is subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (“Code”), the "Code"Company shall pay the Executive on or before the fifth day following the date of termination, an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Contract Payment and such other Total Payments (as defined below) and any federal and state and local income tax and Excise Tax upon the payment provided for by this Section, shall be equal to the Contract Payment and such other Total Payments. For purposes of determining whether any of the payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or benefits received or to be received by the Executive in connection with a Change of Control of the Company or the Executive’s termination of employment, whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, its successors, any person whose actions result in a Change of Control of the Company or any corporation affiliated (or any successor provision thereto)which, by reason as a result of being considered "contingent on the completion of a change in ownership or control" transaction causing a Change of EmployerControl, will become affiliated) with the Company within the meaning of Section 280G 1504 of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penaltiesthe Contract Payment, being hereafter collectively referred to as the "Excise Tax"), then the Employee “Total Payments”) shall be entitled to receive an additional payment or payments (collectivelytreated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, a "Gross-Up Payment"); provided, however, that no Gross-Up Payment and all “excess parachute payments” within the meaning of Section 280G(b)(1) shall be made with respect treated as subject to the Excise Tax, if anyunless in the opinion of tax counsel selected by the Company and acceptable to the Executive, imposed upon whose acceptance shall not be unreasonably withheld, the Total Payments (iin whole or in part) any stock optiondo not constitute parachute payments, including without limitation any incentive stock option, as defined by or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 422 280G(b)(4) of the Code ("ISO"either in their entirety or in excess of the base amount within the meaning of Section 280G(b)(3) granted prior of the Code, or are otherwise not subject to the execution of this Agreement or Excise Tax, (ii) any stock appreciation the amount of the Total Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or similar right, whether or not limited, granted in tandem with an ISO described in (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i). The Gross, above), and (iii) the value of any non-Up Payment cash benefits or any deferred payment or benefit shall be in an amount such that, after payment determined by the Employee Company’s independent auditors in accordance with the principles of all taxes Sections 280G(b)(3) and (including any interest or penalties imposed with respect to such taxes), including an Excise Tax imposed upon 4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Employee retains an 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 maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of 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 equal attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed upon on the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax and/or a federal state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(d) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the 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 procedural), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable with respect to such excess) at the time that the amount of such excess is finally determined.

Gross-Up Payments. Anything in this Agreement to the contrary notwithstanding, in In the event that a severance payment is made under this Agreement and it shall be determined (as hereafter provided) that any payment (other than the Gross-Up Payments provided for herein) or distribution by Employer or any of its affiliates the Company to or for the benefit of the EmployeeExecutive, including the acceleration of vesting of the Option or the issuance of shares upon its exercise, (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant otherwise, but determined without regard to or by reason of any other agreement, policy, plan, program or arrangement, or the lapse or termination of any restriction on, or the vesting or exercisability of any of the foregoing additional payments required under this Section 4.4) (a "Payment"), excluding, however, any stock option or right in respect of restricted stock, ) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto), by reason of being considered "contingent on a change in ownership or control" of Employer, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties are incurred by the Employee with respect to such excise tax (such tax or taxesexcise tax, together with any such interest and penalties, being hereafter are hereinafter collectively referred to as the "Excise Tax"), then the Employee shall be entitled to receive an additional payment or payments (collectively, a "Gross-Up Payment"); provided, however, that no Gross-Up Payment shall be made with respect to the Excise Tax, if any, imposed upon (i) any stock option, including without limitation any incentive stock option, as defined by Section 422 of the Code ("ISO") granted prior to the execution of this Agreement or (ii) any stock appreciation or similar right, whether or not limited, granted in tandem with an ISO described in clause (i). The Gross-Up Payment shall be in an amount such that, that after payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including an 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 Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. All determinations required to be made under this Section 4.4, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm as may be designated by the Employee (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Employee within 30 business days of the receipt of notice from the Employee that there has been a Payment, or such earlier time as is requested by the Company or the Employee. The proceduralIn the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Employee may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 4.4, shall be paid by the Company to the Employee within ten days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Company and the Employee. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Employee 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 Employee.

Gross-Up Payments. Anything If, following a Change in this Agreement to the contrary notwithstandingControl, in the event that a severance payment is made under this Agreement and it shall be determined by the Accounting Firm (as hereafter providedcontemplated by Section 5(b) below) that any payment (other than the Gross-Up Payments provided for herein) or distribution by Employer the Company or any of its affiliates to or for the benefit of the EmployeeExecutive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including, without limitation, any stock option, stock right or similar right, or the lapse or termination of any restriction on, on or the vesting or exercisability of any of the foregoing (a "“Payment"”), excluding, however, any stock option or right in would be an “excess parachute payment” with respect of restricted stock, to which the Executive would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto), by reason of being considered "“contingent on a change in ownership or control" ” of Employerthe Company, within the meaning of Section 280G of the Code (or any successor provision thereto) Code, or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereafter collectively referred to as the "“Excise Tax"”), then: If the aggregate “present value” of the “parachute payments,” as such terms are defined by Section 280G of the Code (together, the “Total Parachute Payments”), does not exceed the product of (i) three times the Executive’s “base amount,” within the meaning of Section 280G of the Code, multiplied by (ii) 110% (the “Trigger Amount”), then the Employee payments and benefits to be made or provided under this Agreement to the Executive shall be reduced (reducing or eliminating the earliest payments first) by the least amount necessary such that no Payment shall be subject to the Excise Tax. If the Total Parachute Payments exceed the Trigger Amount, then the Executive shall be entitled to receive an additional payment or payments (collectively, a "“Gross-Up Payment"); provided, however, that no Gross-Up Payment shall be made with respect to the Excise Tax, if any, imposed upon (i) any stock option, including without limitation any incentive stock option, as defined by Section 422 of the Code ("ISO") granted prior to the execution of this Agreement or (ii) any stock appreciation or similar right, whether or not limited, granted in tandem with an ISO described in clause (i”). The Gross-Up Payment shall be in an amount such that, after payment by the Employee Executive of all taxes (including including, but not limited to, any federal, state or local income taxes, Excise Taxes, FICA and Medicare withholding taxes and interest or penalties imposed with respect to such taxes), including an any Excise Tax imposed upon the Gross-Up Payment, the Employee Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment. The procedural.

Gross-Up Payments. (a) Anything in this Agreement to the contrary notwithstandingnotwithstanding and except as set forth below, in the event that a severance payment is made under this Agreement and it shall be determined (as hereafter provided) that any payment (other than the Gross-Up Payments provided for herein) or distribution by Employer or any of its affiliates the Company to or for the benefit of the Employee, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant otherwise, but determined without regard to or by reason of any other agreement, policy, plan, program or arrangement, or the lapse or termination of any restriction on, or the vesting or exercisability of any of the foregoing additional payments required under this Agreement) (a "“Payment"), excluding, however, any stock option or right in respect of restricted stock, ”) would be subject to the excise tax imposed by Code Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto), by reason of being considered "contingent on a change in ownership or control" of Employer, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties are incurred by Executive with respect to such excise tax (such tax or taxesexcise tax, together with any such interest and penalties, being hereafter are hereinafter collectively referred to as the "“Excise Tax"”), then the Employee Executive shall be entitled to receive an additional payment or payments (collectively, a "“Gross-Up Payment"); provided, however, ”) in an amount such that no after payment by Executive of all taxes imposed upon the Gross-Up Payment shall be made with respect to the Excise Tax, if any, imposed upon (i) any stock option, including without limitation any incentive stock option, as defined by Section 422 of the Code ("ISO") granted prior to the execution of this Agreement or (ii) any stock appreciation or similar right, whether or not limited, granted in tandem with an ISO described in clause (i). The Gross-Up Payment shall be in an amount such that, after payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxestaxes but excluding any taxes or interest imposed by Section 409A of the Code), including an Excise Tax imposed upon the Gross-Up Payment, the Employee Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. This provision is intended to override the cut-back provisions of Section 7.7 of the Company’s 2004 Performance Incentive Plan and 2007 Performance Incentive Plan, and any similar cut-back provision in any plan adopted by the Company following the date of this Agreement. Any Gross Up Payment shall be paid to Executive on or before the date that is ten (10) days prior to the date when Executive is legally required to remit such taxes. Notwithstanding the foregoing provisions of this Section 7, if it is determined that Executive is entitled to a Gross-Up Payment. The procedural, but that the Payments do not exceed by $25,000 the greatest amount that could be paid to Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount.

Gross-Up Payments. Anything in this Agreement to the contrary notwithstanding, in In the event that a severance payment is made under this Agreement and it shall be determined (as hereafter provided) that any payment (other than the Gross-Up Payments provided for herein) or distribution by Employer or any of its affiliates the Company to or for the benefit of the EmployeeExecutive, including the acceleration of vesting of the Options or the issuance of shares upon its exercise, (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant otherwise, but determined without regard to or by reason of any other agreement, policy, plan, program or arrangement, or the lapse or termination of any restriction on, or the vesting or exercisability of any of the foregoing additional payments required under this Section 4.5) (a "Payment"), excluding, however, any stock option or right in respect of restricted stock, ) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto), by reason of being considered "contingent on a change in ownership or control" of Employer, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties are incurred by the Employee with respect to such excise tax (such tax or taxesexcise tax, together with any such interest and penalties, being hereafter are hereinafter collectively referred to as the "Excise Tax"), then the Employee shall be entitled to receive an additional payment or payments (collectively, a "Gross-Up Payment"); provided, however, that no Gross-Up Payment shall be made with respect to the Excise Tax, if any, imposed upon (i) any stock option, including without limitation any incentive stock option, as defined by Section 422 of the Code ("ISO") granted prior to the execution of this Agreement or (ii) any stock appreciation or similar right, whether or not limited, granted in tandem with an ISO described in clause (i). The Gross-Up Payment shall be in an amount such that, that after payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including an 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 Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. All determinations required to be made under this Section 4.5, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm as may be designated by the Employee (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Employee within 30 business days of the receipt of notice from the Employee that there has been a Payment, or such earlier time as is requested by the Company or the Employee. The proceduralIn the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Employee may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 4.5, shall be paid by the Company to the Employee within five days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Company and the Employee. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Employee 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 Employee.

Gross-Up Payments. Anything in this Agreement to the contrary notwithstanding, in In the event that Xx. Xxxxxxxxx becomes ----------------- entitled to receive a severance payment is made under pursuant to this Agreement and it shall be determined (as hereafter provided) that any payment (other than the Gross-Up Payments provided for herein) or distribution by Employer or any of its affiliates to or for the benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, or the lapse or termination of any restriction on, or the vesting or exercisability of any of the foregoing (a "Payment"), excludingand is entitled to a Gross-Up for such Payment pursuant to a specific provision of this Agreement, howeverthen no later than the fifth day following the date (the "Payment Date") on which Xx. Xxxxxxxxx becomes entitled to receive such Payment, the Company shall pay to Xx. Xxxxxxxxx additional amounts (the "Gross-Up Payments") such that the net amount retained by Xx. Xxxxxxxxx, after deduction of any stock option or right in respect Excise Tax (within the meaning of restricted stock, would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986Code, as amended (the "Code") ), or federal, state or local income tax on the aggregate Payments received (or that Xx. Xxxxxxxxx has become entitled to receive) as of the Payment Date plus any successor provision theretofederal, state or local income tax and any Excise Tax upon the Gross-Up Payments (after taking into account all Gross-Up Payments previously made), shall be equal to the amount Xx. Xxxxxxxxx is entitled to receive under the definition of such Payment. For the purposes of determining whether any Payment will be subject to Excise Tax and the amount of such Excise Tax, (i) all amounts received or to be received by reason Xx. Xxxxxxxxx in connection with a Change of being considered Control (as defined in Section 9.1(a), below) shall be treated as "contingent on a change parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all excess "parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that in ownership the written opinion of independent tax counsel selected by the Company's independent auditors (the "Tax Counsel") which opinion shall be obtained at the Company's expense, any such payments or control" benefits (in whole or in part) do not constitute parachute payments or excess parachute payments (in whole or in part), or represent reasonable compensation for personal services to be rendered or actually rendered before the Change of EmployerControl in excess of the base amount, within the meaning of Section 280G 280(b)(4)(B) of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest Code; and penalties, being hereafter collectively referred to as the "Excise Tax"), then the Employee shall be entitled to receive an additional payment or payments (collectively, a "Gross-Up Payment"); provided, however, that no Gross-Up Payment shall be made with respect to the Excise Tax, if any, imposed upon (i) any stock option, including without limitation any incentive stock option, as defined by Section 422 of the Code ("ISO") granted prior to the execution of this Agreement or (ii) the value of any stock appreciation non-cash benefit or similar right, whether or not limited, granted any deferred cash payment included in tandem with an ISO described in clause (i). The Gross-Up Payment the Payments shall be in an amount such that, after payment determined by the Employee Company's independent auditors in accordance with the principles of all taxes Section 280G(d)(3) and (including any interest or penalties imposed with respect to such taxes), including an Excise Tax imposed upon 4) of the Code. For purposes of determining the amount of each Gross-Up Payment, Xx. Xxxxxxxxx shall be deemed to pay federal income taxes at the Employee retains an amount highest marginal rate of federal income taxation in effect during the calendar year in which the Gross-Up Payment equal is to be made and state and local income taxes at the Excise Tax imposed upon highest marginal rate of taxation in effect in the Paymentstate and locality of Xx. The proceduralXxxxxxxxx'x residence on the date of payment, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes, but assuming that Xx. Xxxxxxxxx has no other deductions or credits available to reduce such taxes.

Gross-Up Payments. Anything in this Agreement to the contrary notwithstanding, in In the event that a severance payment is made under this Agreement and it shall be determined (as hereafter provided) that any payment (other than or the Gross-Up Payments provided for herein) value of any benefit received or distribution to be received by Employer the Executive in connection with the Executive's Termination or any of its affiliates to or for the benefit of the Employeecontingent upon a Change in Control, whether paid received or payable or distributed or distributable to be received pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program arrangement or arrangement, or agreement (the lapse or termination of any restriction on, or the vesting or exercisability of any of the foregoing (a "PaymentPayments"), excluding, however, any stock option or right in respect of restricted stock, would be subject to the excise tax imposed by Code Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision thereto)comparable federal, by reason of being considered "contingent on a change in ownership or control" of Employer, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax or excise taxes, together with any such interest and penalties, being hereafter are hereinafter collectively referred to as the "Excise Tax"), then as determined as provided below, the Employee Company shall be entitled pay to receive or for the benefit of the Executive an additional payment or payments amount (collectively, a the "Gross-Up Payment"); provided) such that the net amount retained by the Executive, howeverafter deduction of the Excise Tax on the Payments and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section VII, and any interest, penalties or additions to tax payable by the Executive with respect thereto, shall be equal to the total value of the Payments. The intent of the parties is that no the Company shall be solely responsible for and shall pay any Excise Tax on any Payments and the Gross-Up Payment shall be made with respect to the Excise Taxand any income and employment taxes (including, if anywithout limitation, penalties and interest) imposed upon (i) on any stock option, including without limitation any incentive stock option, as defined by Section 422 of the Code ("ISO") granted prior to the execution of this Agreement or (ii) any stock appreciation or similar right, whether or not limited, granted in tandem with an ISO described in clause (i). The Gross-Up Payment shall be in an amount such that, after payment Payments as well as any loss of deduction caused by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including an Excise Tax imposed upon the Gross-Up Payment. Notwithstanding the immediately preceding paragraph, in the event that a reduction to the Payments in respect of the Executive of 5% or less, but in no event in excess of $500,000, would cause no Excise Tax to be payable, the Employee retains an amount of the Executive will not be entitled to a Gross-Up Payment equal and the Payments shall be reduced to the extent necessary so that the Payments shall not be subject to the Excise Tax imposed upon Tax. Unless the PaymentExecutive shall have given prior written notice to the Company specifying a different order by which to effectuate the foregoing, the Company shall reduce or eliminate the Payments (x) by first reducing or eliminating the portion of the Payments which are not payable in cash (other than that portion of the Payments subject to clause (z) hereof), (y) then by reducing or eliminating cash payments (other than that portion of the Payments subject to clause (z) hereof) and (z) then by reducing or eliminating the portion of the Payments (whether payable in cash or not payable in cash) to which Treasury Regulation Section 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the date of the Change in Control. The proceduralAny notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive's rights and entitlements to any benefits or compensation.

Gross-Up Payments. Anything in this Agreement to the contrary notwithstanding, in (a) In the event that a severance payment it is made under this Agreement and it shall be determined (pursuant to clause (b) below) or finally determined (as hereafter provideddefined in clause (c)(iii) below) that any payment (payment, distribution, transfer, benefit or other than the Gross-Up Payments provided for herein) or distribution by event with respect to Employer or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of its affiliates them, and including any benefit plan of any of them), to or for the benefit of the Employee or Employee's dependents, whether paid heirs or payable or distributed or distributable beneficiaries pursuant to the terms of the Employment Agreement (but determined without regard to any additional payments required under this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, or the lapse or termination of any restriction on, or the vesting or exercisability of any of the foregoing Exhibit A) (each a "Payment" and collectively the "), excluding, however, any stock option Payments") is or right in respect of restricted stock, would be was subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or ), and/or any successor provision thereto), by reason of being considered "contingent on a change in ownership or control" of Employer, within the meaning of Section 280G of the Code (or any successor comparable provision thereto) or to any similar tax imposed by of state or local lawincome tax law (collectively, "Section 4999"), or any interest interest, penalty or penalties addition to tax is or was incurred by Employee with respect to such excise tax (such tax or taxesexcise tax, together with any such interest and penaltiesinterest, being hereafter penalty or addition to tax, hereinafter collectively referred to as the "Excise Tax"), then then, within ten (10) days after such determination or final determination, as the case may be, Employer shall pay to Employee shall be entitled to receive an additional cash payment or payments (collectively, a hereinafter referred to as the "Gross-Gross Up Payment"); provided) in an amount such that after payment by Employee of all taxes, howeverinterest, that no Gross-Up Payment shall be made penalties and additions to tax imposed with respect to the Excise Tax, if any, imposed upon (i) any stock option, including without limitation any incentive stock option, as defined by Section 422 of the Code ("ISO") granted prior to the execution of this Agreement or (ii) any stock appreciation or similar right, whether or not limited, granted in tandem with an ISO described in clause (i). The Gross-Gross Up Payment shall be in an amount such that(including, after payment by the Employee of all without limitation, any income and excise taxes (including any interest or penalties imposed with respect to such taxes), including an Excise Tax imposed upon the Gross-Gross Up Payment), the Employee retains an amount of the Gross-Gross Up Payment equal to the Excise Tax imposed upon such Payment or Payments and the Gross Up Payment. The proceduralThis provision is intended to put Employee in the same position as Employee would have been had no Excise Tax been imposed upon or incurred as a result of any Payment.

Gross-Up Payments. Anything in this Agreement to If the contrary notwithstanding, in the event that a severance payment is made provided under this Agreement and it shall be determined (as hereafter provided) that any payment (other than the Gross-Up Payments provided for herein) or distribution by Employer or any of its affiliates to or for the benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms Section 14 of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, or (the lapse or termination of any restriction on, or the vesting or exercisability of any of the foregoing (a "“Contract Payment"), excluding, however, any stock option or right in respect of restricted stock, would be ”) is subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (“Code”), the "Code"Company shall pay the Executive on or before the fifth day following the date of termination, an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Contract Payment and such other Total Payments (as defined below) and any federal and state and local income tax and Excise Tax upon the payment provided for by this Section, shall be equal to the Contract Payment and such other Total Payments. For purposes of determining whether any of the payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or benefits received or to be received by the Executive in connection with a Change of Control of the Company or the Executive’s termination of employment, whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, its successors, any person whose actions result in a Change of Control of the Company or any corporation affiliated (or any successor provision thereto)which, by reason as a result of being considered "contingent on the completion of a change in ownership or control" transaction causing a Change of EmployerControl, will become affiliated) with the Company within the meaning of Section 280G 1504 of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penaltiesthe Contract Payment, being hereafter collectively referred to as the "Excise Tax"), then the Employee “Total Payments”) shall be entitled to receive an additional payment or payments (collectivelytreated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, a "Gross-Up Payment"); provided, however, that no Gross-Up Payment and all “excess parachute payments” within the meaning of Section 280G(b)(1) shall be made with respect treated as subject to the Excise Tax, if any, imposed upon (i) any stock option, including without limitation any incentive stock option, as defined unless in the opinion of tax counsel selected by Section 422 of the Code ("ISO") granted prior Company and acceptable to the execution of this Agreement or (ii) any stock appreciation or similar rightExecutive, whether or whose acceptance shall not limited, granted in tandem with an ISO described in clause (i). The Gross-Up Payment shall be in an amount such that, after payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including an Excise Tax imposed upon the Gross-Up Paymentunreasonably withheld, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment. The proceduralTotal Payments (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in