Common use of Gross-Up Provision Clause in Contracts

Gross-Up Provision. (a) If the payments provided by Section 4(a) hereof (the “Agreement Payments”) would be subject to the tax imposed by Section 4999 of the Code (the “Excise Tax”), the Company shall pay to Executive at the time specified in Section 7(b) below an amount (the “Gross-up Payment”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined), and any federal, state and local income tax and Excise Tax upon the Gross-up Payment provided for by this subsection (a) shall be equal to what the Total Payments would have been had the Excise Tax not applied, as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”). For purposes of determining whether any of the Agreement 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 Executive in connection with a Change in Control or Executive’s termination of employment (under this Agreement or any other agreement with the Company or any person whose actions result in a Change in Control or any person affiliated with the Company) (which, together with the Agreement Payments, shall constitute the “Total Payments”) shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors such other payments or benefits (in whole or in part) are not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the Total Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the Gross-up Payment, Executive shall be deemed to pay federal, state, and local income taxes at the highest applicable marginal rate 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. If the Excise Tax is finally determined to be less than the amount taken into account at the time the Gross-up Payment is made, Executive shall repay the portion attributable to such reduction (plus the portion of the Gross-up Payment attributable to a reduction in Excise Tax and/or a federal and state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of the Code. If the Excise Tax is later determined to exceed the amount taken into account at the time the Gross-up Payment is made, the Company shall make an additional gross-up payment (plus any interest payable with respect to such excess at the rate provided in Section 1274(b)(2)(B) of the Code) when such excess is finally determined.

Gross-Up Provision. (a) If In the event that you become entitled to the payments provided by Section 4(aSections 4(iii) hereof (the “"Agreement Payments”) would "), if any of the Agreement Payments will be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (the “Excise Tax”or any similar tax that may hereafter be imposed), the Company shall pay to Executive you at the time specified in Section 7(bSubsection (vii) below an additional amount (the “"Gross-up Payment”") such that the net amount retained by Executiveyou, after deduction of any Excise Tax on the Total Payments (as hereinafter defined), ) and any federal, state and local income tax and Excise Tax upon the Gross-up Payment provided for by this subsection (a) vi), but before deduction for any federal, state or local income tax on the Agreement Payments, shall be equal to what the "Total Payments would have been had the Excise Tax not applied, Payments," as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”)defined below. For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (ia) any other payments or benefits received or to be received by Executive you in connection with a Change change in Control control of the Company or Executive’s your termination of employment (under whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or Company, any person whose actions result in a Change in Control change of control of the Company or any person affiliated with the CompanyCompany or such person) (which, together with the Agreement Payments, shall constitute the “"Total Payments”") shall be treated as “"parachute payments” " within the meaning of Section 280G(b)(2) of the Code, and all “"excess parachute payments” " within the meaning of Section 280G(b)(1280G(b)(l) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors Company's independent auditors 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 within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax, (iib) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A1) the total amount of the Total Payments or (B2) the amount of excess parachute payments within the meaning of Section 280G(b)(1280G(b)(l) of the Code (after applying clause (ia), above), and (iiic) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors Company's independent auditors in accordance with the principles of Sections 280G(d)(3280(G)(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive you shall be deemed to pay federal, state, and local federal income taxes at the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made and the applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross- up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If In the event that the Excise Tax is finally subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive you shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-up Payment attributable to such reduction (plus the portion of the Gross-up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the portion of the Gross-up Payment being repaid by you if such repayment results in a reduction in Excise Tax and/or a federal and state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of 1274(b)(2)(B) of the Code. If In the event that the Excise Tax is later determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional gross-up payment in respect of such excess (plus any interest payable with respect to such excess excess) at the rate provided in Section 1274(b)(2)(B) time that the amount of the Code) when such excess is finally determined.

Gross-Up Provision. (a) If In the event that you become entitled to the payments provided by Section 4(aSections 4(iii) hereof (the “"Agreement Payments”) would "), if any of the Agreement Payments will be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (the “Excise Tax”or any similar tax that may hereafter be imposed), the Company shall pay to Executive you at the time specified in Section 7(bSubsection (vii) below an additional amount (the “"Gross-up Payment”") such that the net amount retained by Executiveyou, after deduction of any Excise Tax on the Total Payments (as hereinafter defined), ) and any federal, state and local income tax and Excise Tax upon the Gross-up Payment provided for by this subsection (a) vi), but before deduction for any federal, state or local income tax on the Agreement Payments, shall be equal to what the "Total Payments would have been had the Excise Tax not applied, Payments," as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”)defined below. For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (ia) any other payments or benefits received or to be received by Executive you in connection with a Change change in Control control of the Company or Executive’s your termination of employment (under whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or Company, any person whose actions result in a Change in Control change of control of the Company or any person affiliated with the CompanyCompany or such person) (which, together with the Agreement Payments, shall constitute the “"Total Payments”") shall be treated as “"parachute payments” " within the meaning of Section 280G(b)(2) of the Code, and all “"excess parachute payments” " within the meaning of Section 280G(b)(1280G(b)(l) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors Company's independent auditors 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 within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax, (iib) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A1) the total amount of the Total Payments or (B2) the amount of excess parachute payments within the meaning of Section 280G(b)(1280G(b)(l) of the Code (after applying clause (ia), above), and (iiic) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors Company's independent auditors in accordance with the principles of Sections 280G(d)(3280(G)(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive you shall be deemed to pay federal, state, and local federal income taxes at the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made and the applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If In the event that the Excise Tax is finally subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive you shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-up Payment attributable to such reduction (plus the portion of the Gross-up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the portion of the Gross-up Payment being repaid by you if such repayment results in a reduction in Excise Tax and/or a federal and state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of 1274(b)(2)(B) of the Code. If In the event that the Excise Tax is later determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional gross-up payment in respect of such excess (plus any interest payable with respect to such excess excess) at the rate provided in Section 1274(b)(2)(B) time that the amount of the Code) when such excess is finally determined.. (vii)

Gross-Up Provision. (a) If In the event that you become entitled to the payments provided by Section 4(aSections 4(iii) or 5 hereof (the “"Agreement Payments”) would "), if any of the Agreement Payments will be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (the “Excise Tax”or any similar tax that may hereafter be imposed), the Company shall pay to Executive you at the time specified in Section 7(bSubsection (vii) below an additional amount (the “"Gross-up Payment”") such that the net amount retained by Executiveyou, after deduction of any Excise Tax on the Total Payments (as hereinafter defined), ) and any federal, state and local income tax and Excise Tax upon the Gross-up Payment provided for by this subsection (a) vi), but before deduction for any federal, state or local income tax on the Agreement Payments, shall be equal to what the "Total Payments would have been had the Excise Tax not applied, Payments," as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”)defined below. For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (ia) any other payments or benefits received or to be received by Executive you in connection with a Change change in Control control of the Company or Executive’s your termination of employment (under whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or Company, any person whose actions result in a Change in Control change of control of the Company or any person affiliated with the CompanyCompany or such person) (which, together with the Agreement Payments, shall constitute the “"Total Payments”") shall be treated as “"parachute payments” " within the meaning of Section 280G(b)(2) of the Code, and all “"excess parachute payments” " within the meaning of Section 280G(b)(1280G(b)(l) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors Company's independent auditors 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 within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax, (iib) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A1) the total amount of the Total Payments or (B2) the amount of excess parachute payments within the meaning of Section 280G(b)(1280G(b)(l) of the Code (after applying clause (ia), above), and (iiic) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors Company's independent auditors in accordance with the principles of Sections 280G(d)(3280(G)(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive you shall be deemed to pay federal, state, and local federal income taxes at the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made and the applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If In the event that the Excise Tax is finally subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive you shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-up Payment attributable to such reduction (plus the portion of the Gross-up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the portion of the Gross-up Payment being repaid by you if such repayment results in a reduction in Excise Tax and/or a federal and state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of 1274(b)(2)(B) of the Code. If In the event that the Excise Tax is later determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional gross-up payment in respect of such excess (plus any interest payable with respect to such excess excess) at the rate provided in Section 1274(b)(2)(B) time that the amount of the Code) when such excess is finally determined.. (vii)

Gross-Up Provision. (a) If the payments provided by Section 4(a4(a)(i)- (iv) hereof (the “"Agreement Payments”") would be become subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code as in effect on the date of this Agreement (or any similar tax), Executive will be responsible for the Excise Tax and the Company will not pay Executive an additional amount (the “"Gross-up Payment"). If, however, the "Agreement Payments" become subject to the Excise Tax”)Tax (or any similar tax) by virtue of changes in the Code which occur after the date of this Agreement, the Company shall pay to Executive at the time specified in Section 7(b) below an amount (the “a "Gross-up Payment”) " such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined), and any federal, state and local income tax and Excise Tax upon the Gross-up Payment provided for by this subsection (a) shall be equal to what the Total Payments would have been had such changes in the Excise Tax Code not applied, as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”)occurred. For purposes of determining whether any of the Agreement 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 Executive in connection with a Change in Control or Executive’s 's termination of employment (under this Agreement or any other agreement with the Company or any person whose actions result in a Change in of Control or any person affiliated with the Company) (which, together with the Agreement Payments, shall constitute the “"Total Payments”") shall be treated as “"parachute payments” " within the meaning of Section 280G(b)(2) of the Code, and all “"excess parachute payments” " within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors Company's independent auditors such other payments or benefits (in whole or in part) are not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the Total Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the Gross-up Payment, Executive shall be deemed to pay federal, state, and local income taxes at the highest applicable marginal rate 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. If the Excise Tax is finally determined to be less than the amount taken into account at the time the Gross-Gross- up Payment is made, Executive shall repay the portion attributable to such reduction (plus the portion of the Gross-up Payment attributable to a reduction in Excise Tax and/or a federal and state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of the Code. If the Excise Tax is later determined to exceed the amount taken into account at the time the Gross-up Payment is made, the Company shall make an additional gross-up payment (plus any interest payable with respect to such excess at the rate provided in Section 1274(b)(2)(B) of the Code) when such excess is finally determined.

Gross-Up Provision. (a) If the payments provided by Section 4(a4(a)(i)-(iv) hereof (the “"Agreement Payments”") would be become subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code as in effect on the date of this Agreement (or any similar tax), Executive will be responsible for the Excise Tax and the Company will not pay Executive an additional amount (the “"Gross-up Payment"). If, however, the "Agreement Payments" become subject to the Excise Tax”)Tax (or any similar tax) by virtue of changes in the Code which occur after the date of this Agreement, the Company shall pay to Executive at the time specified in Section 7(b) below an amount (the “a "Gross-up Payment”) " such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined), and any federal, state and local income tax and Excise Tax upon the Gross-up Payment provided for by this subsection (a) shall be equal to what the Total Payments would have been had such changes in the Excise Tax Code not applied, as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”)occurred. For purposes of determining whether any of the Agreement 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 Executive in connection with a Change in Control or Executive’s 's termination of employment (under this Agreement or any other agreement with the Company or any person whose actions result in a Change in of Control or any person affiliated with the Company) (which, together with the Agreement Payments, shall constitute the “"Total Payments”") shall be treated as “"parachute payments” " within the meaning of Section 280G(b)(2) of the Code, and all “"excess parachute payments” " within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors Company's independent auditors such other payments or benefits (in whole or in part) are not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the Total Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the Gross-up Payment, Executive shall be deemed to pay federal, state, and local income taxes at the highest applicable marginal rate 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. If the Excise Tax is finally determined to be less than the amount taken into account at the time the Gross-up Payment is made, Executive shall repay the portion attributable to such reduction (plus the portion of the Gross-up Payment attributable to a reduction in Excise Tax and/or a federal and state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of the Code. If the Excise Tax is later determined to exceed the amount taken into account at the time the Gross-up Payment is made, the Company shall make an additional gross-up payment (plus any interest payable with respect to such excess at the rate provided in Section 1274(b)(2)(B) of the Code) when such excess is finally determined.

Gross-Up Provision. Any and all payments made to issuer hereunder shall be made free and clear of, and without deduction or withholding for any present or future taxes, levies, imposts, deductions, charges or withholdings of any nature, and all liabilities with respect thereto, excluding taxed imposed on net income of the issuer and all income and franchise taxes of the United States and any political subdivision thereof imposed on the issuer (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities are referred to herein as taxes) if the Applicant shall be required by law to deduct any Taxes from or in respect to any sum payable hereunder (I) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 11, the issuer shall receive an amount equal to the sum the issuer would have received and no deductions been made): (a) If the payments provided by Section 4(aApplicant shall make as such deductions and (b) hereof (the “Agreement Payments”) would be subject Applicant shall pay the full amount deducted to the tax relevant taxation authority or other authority in compliance with applicable law. The Applicant shall indemnify the issuer for the full amount of Taxes (including without limitation and Taxes imposed by Section 4999 any jurisdiction on amounts payable hereunder) paid by the issuer and any party (including penalties, interest and expenses) arising therefrom or with respect thereto whether or not such Taxes were correctly or legally asserted. Payment upon this indemnification shall be made within thirty (30) days from the date the issuer makes written demand therefor. Within thirty (30) days after date of the Code (payment of Taxes the “Excise Tax”), the Company Applicant shall pay to Executive at the time specified in Section 7(b) below an amount (the “Gross-up Payment”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined), and any federal, state and local income tax and Excise Tax upon the Gross-up Payment provided for by this subsection (a) shall be equal to what the Total Payments would have been had the Excise Tax not applied, as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”). For purposes of determining whether any of the Agreement Payments will be subject furnish to the Excise Tax and issuer the amount original or certified copy of such Excise Tax, (i) any other payments or benefits received or to be received by Executive in connection with a Change in Control or Executive’s termination of employment (under this Agreement or any other agreement with the Company or any person whose actions result in a Change in Control or any person affiliated with the Company) (which, together with the Agreement Payments, shall constitute the “Total Payments”) shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors such other payments or benefits (in whole or in part) are not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the Total Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred receipt evidencing payment or benefit shall be determined by the Independent Auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the Gross-up Payment, Executive shall be deemed to pay federal, state, and local income taxes at the highest applicable marginal rate 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. If the Excise Tax is finally determined to be less than the amount taken into account at the time the Gross-up Payment is made, Executive shall repay the portion attributable to such reduction (plus the portion of the Gross-up Payment attributable to a reduction in Excise Tax and/or a federal and state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of the Code. If the Excise Tax is later determined to exceed the amount taken into account at the time the Gross-up Payment is made, the Company shall make an additional gross-up payment (plus any interest payable with respect to such excess at the rate provided in Section 1274(b)(2)(B) of the Code) when such excess is finally determinedthereof.

Gross-Up Provision. Any and all payments made tO Issuer hereunder shall be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, deductions, charges or withholdings of any nature, and all liabilities with respect thereto, excluding taxed imposed on net income of the Issuer and all income and franchise taxes of the United States and any political subdivision thereof imposed on the Issuer (a) all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities are referred to herein as "Taxes"). If the payments provided by Section 4(a) hereof (the “Agreement Payments”) would be subject to the tax imposed by Section 4999 of the Code (the “Excise Tax”), the Company shall pay to Executive at the time specified in Section 7(b) below an amount (the “Gross-up Payment”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined), and any federal, state and local income tax and Excise Tax upon the Gross-up Payment provided for by this subsection (a) Applicant shall be equal required by law to what the Total Payments would have been had the Excise Tax not applied, as determined by the Company’s independent auditors deduct any Taxes from or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”). For purposes of determining whether respect to any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, sum payable hereunder (i) any other payments or benefits received or the sum payable shall be increased as may be necessary to be received by Executive in connection with a Change in Control or Executive’s termination of employment that after making all required deductions (including deductions applicable to additional sums payable under this Agreement or any other agreement with Section 11, the Company or any person whose actions result in a Change in Control or any person affiliated with the Company) (which, together with the Agreement Payments, Issuer shall constitute the “Total Payments”) shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject receive an amount equal to the Excise Tax, unless in sum the opinion of tax counsel selected by the Independent Auditors such other payments or benefits (in whole or in part) are not subject to the Excise Tax, Issuer would have received had no deductions been made); (ii) the amount of the Total Payments which Applicant shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the Total Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i), above), make all such deductions; and (iii) the value Applicant shall pay the full amount deducted to the relevant taxation authority or other authority in compliance with applicable law. The Applicant shall indemnify the Issuer for the fiull amount of Taxes, (including, without limitation, and Taxes imposed by any non-cash benefits jurisdiction on amounts payable hereunder) paid by the Issuer and any liability (including penalties, interest and expenses) arising therefrom or any deferred payment with respect thereto, whether or benefit not such Taxes were correctly or legally asserted Payment upon this indemnification shall be determined by made within th~y (30) days from the Independent Auditors in accordance with date the principles of Sections 280G(d)(3Issuer makes written demand therefor U ithin th~y (30) and (4) days after date of the Code. For purposes payment of determining the Gross-up Payment, Executive shall be deemed to pay federal, state, and local income taxes at the highest applicable marginal rate 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. If the Excise Tax is finally determined to be less than the amount taken into account at the time the Gross-up Payment is made, Executive shall repay the portion attributable to such reduction (plus the portion of the Gross-up Payment attributable to a reduction in Excise Tax and/or a federal and state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of the Code. If the Excise Tax is later determined to exceed the amount taken into account at the time the Gross-up Payment is madeTaxes, the Company Applicant shall make an additional gross-up fumish tO the issuer the original or certified copy of a receipt evidencing payment (plus any interest payable with respect to such excess at the rate provided in Section 1274(b)(2)(B) of the Code) when such excess is finally determined.thereof

Gross-Up Provision. In the event that any payment and the value of any benefit (a) If the payments provided collectively, "Payments"), or any portion thereof, received or to be received by Section 4(a) hereof (the “Executive under this Agreement Payments”) would otherwise be subject to the excise tax imposed by under Section 4999 of the Code (Code, then the “Excise Tax”), Company or the acquiring or successor entity to the Company shall pay to Executive at within ninety (90) days of the time specified in Section 7(b) below date Executive becomes subject to the Excise Tax, an additional amount (the “"Excise Tax Gross-up Up Payment”") such that the net amount retained by the Executive, after deduction of (i) any Excise Tax on the Total Payments and (as hereinafter defined), and ii) any federal, state and local income or employment tax and Excise Tax upon the Gross-up Payment payment provided for by this subsection (a) section 3, shall be equal to what the Total Payments, reduced by the amount of any United States federal, state and local income or employment tax liability of the Executive if the Payments would have been had were not subject to the Excise Tax not applied, as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”)Tax. For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any : Any other payments or benefits received or to be received by Executive in connection with transactions contemplated by a Change in Control or Executive’s 's termination of employment (under whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or any person whose actions result in a Change in Control or any person affiliated with the Company) (which), together with the Agreement Payments, shall constitute the “Total Payments”) shall be treated as “"parachute payments” " within the meaning of Section 280G(b)(2) 280G of the CodeCode or any similar or successor provision, and all “"excess parachute payments” " within the meaning of Section 280G(b)(1) of the Code 280G or any similar or successor provision shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors Company 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 (or any similar or successor provision of the Code) in excess of the base amount within the meaning of Section 280G (or any similar or successor provision of the Code), or are otherwise not subject to the Excise Tax, (ii) the . The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (Ai) the Total total amount of the Payments or (Bii) the amount of the excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i), above), and (iii) the 280G. The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors accounting firm that is the Company's outside auditor at the time of such determination, which firm must be reasonably acceptable to Executive (the "Accounting Firm") in accordance with the principles of Sections 280G(d)(3) and (4) Section 280G of the Code. For purposes of determining the amount of the Excise Tax Gross-up Up Payment, Executive shall be deemed to pay federal, state, federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made and state and local income taxes at the highest applicable marginal rate for of taxation in the calendar year in which state and locality of Executive's residence on the date the Excise Tax Gross-up Up Payment is to be made made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If In the event that the Excise Tax is finally subsequently determined to be less than the amount taken into account at the time the Gross-up Payment is madeunder this section 3, 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 Excise Tax Gross-Up Payment attributable to such reduction (plus the portion of the Excise Tax Gross-up Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Excise Tax Gross-Up Payment being repaid by Executive if such repayment results in a reduction in Excise Tax and/or a federal and federal, state and or local income tax deduction), ) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of 1274(b)(2)(B) of the Code. If In the event that the Excise Tax is later determined to exceed the amount taken into account under this section 3 (including by reason of any payment the existence or amount of which cannot be determined at the time of the Excise Tax Gross-up Payment is madeUp Payment), the Company shall make an additional grossExcise Tax Gross-up payment Up Payment in respect of such excess (plus any interest payable with respect to such excess excess) at the rate provided in Section 1274(b)(2)(B) time that the amount of the Code) when such excess is finally determineddetermined in accordance with the principles set forth in this section 3. All determinations required to be made under this section 3 shall be made by the Accounting Firm. The Company shall cause the Accounting Firm to provide detailed supporting calculations of its determinations to the Company and Executive. Notice must be given to the Accounting Firm within fifteen (15) business days after an event entitling Executive to any Payments under this Agreement. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The Accounting Firm's determinations must be made with substantial authority (within the meaning of Section 6662 of the Code).

Gross-Up Provision. (a) If the payments provided by Section 4(a4(b) hereof ------------------ (the “"Agreement Payments”") would be become subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code as in effect on the date of this Agreement (or any similar tax), Executive will be responsible for the Excise Tax and the Company will not pay Executive an additional amount (the “"Gross-up Payment"). If, however, the "Agreement Payments" become subject to the Excise Tax”)Tax (or any similar tax) by virtue of changes in the Code which occur after the date of this Agreement, the Company shall pay to Executive at the time specified in Section 7(bSubsection (i) below an amount (the “a "Gross-up Payment”) " such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined), and any federal, state and local income tax and Excise Tax upon the Gross-up Payment provided for by this subsection (a) section shall be equal to what the Total Payments would have been had such changes in the Excise Tax Code not applied, as determined by the Company’s independent auditors or another nationally recognized public accounting firm selected by the Company (in either case, the “Independent Auditors”)occurred. For purposes of determining whether any of the Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (ia) any other payments or benefits received or to be received by Executive in connection with a Change change in Control control or Executive’s 's termination of employment (under this Agreement or any other agreement with the Company or any person whose actions result in a Change in Control change of control or any person affiliated with the Company) (which, together with the Agreement Payments, shall constitute the “"Total Payments”") shall be treated as “"parachute payments” " within the meaning of Section 280G(b)(2) of the Code, and all “"excess parachute payments” " within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Independent Auditors Company's independent auditors such other payments or benefits (in whole or in part) are not subject to the Excise Tax, (iib) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A1) the Total Payments or (B2) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (ia), above), and (iiic) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Auditors Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the Gross-up Payment, Executive shall be deemed to pay federal, state, and local income taxes at the highest applicable marginal rate 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. If the Excise Tax is finally determined to be less than the amount taken into account at the time the Gross-up Payment is made, Executive shall repay the portion attributable to such reduction (plus the portion of the Gross-up Payment attributable to a reduction in Excise Tax and/or a federal and state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B)of 1274(b)(2)(B) of the Code. If the Excise Tax is later determined to exceed the amount taken into account at the time the Gross-up Payment is made, the Company shall make an additional gross-up payment (plus any interest payable with respect to such excess at the rate provided in Section 1274(b)(2)(B) of the Codecode) when such excess is finally determined.