Common use of Additional Payments Clause in Contracts

Additional Payments. (a) If all, or any portion, of the payments or other benefits provided under any section of this Agreement, either alone or together with other payments and benefits that you receive or are entitled to receive from the Company or its affiliates, (whether or not under an existing plan, arrangement or other agreement) (collectively the "Payments") would constitute an excess "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under Section 4999 of the Code, (such excise tax, together with any interest and penalties related thereto, are hereinafter collectively referred to as the "Excise Tax") then, in addition to any other benefits to which you are entitled under this Agreement, you will be entitled to receive an additional payment (a "Gross-Up Payment") in cash, in an amount such that after you pay all taxes including, without limitation, (i) any income taxes (and any interest and penalties imposed with respect thereto) and (ii) any Excise Tax, imposed upon the Gross-Up Payment, you will retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the amount of payments under this Article 6 (the "Parachute Gross-up") shall be computed and made in writing by the Employer's then independent public accountants (the "Accountants"), whose determination shall be, subject to the Employee's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposes. For purposes of making the calculations required by this Section 4, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4.

Additional Payments. (a) If all, Notwithstanding anything in this Agreement or any portionother agreement to the contrary, in the event it is determined that any payments or distributions (including, without limitation, the vesting of an option or other non-cash benefit or property or the forgiveness of any indebtedness) by the Company or any affiliate (as defined under the Securities Act of 1933, as amended, and the regulations thereunder) thereof or any other person to or for the benefit of the payments Executive, whether paid or other benefits provided under any section payable pursuant to the terms of this Agreement, either alone or together pursuant to any other agreement or arrangement with other payments and benefits that you receive or are entitled to receive from the Company or its affiliatesany such affiliate (“Payments”), (whether or not under an existing plan, arrangement or other agreement) (collectively would be subject to the "Payments") would constitute an excess "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under imposed by Section 4999 of the Code, or any successor provision, or any interest or penalties with respect to the excise tax (such the excise tax, together with any interest and penalties related theretopenalties, are hereinafter collectively referred to as the "“Excise Tax") then”), in addition to any other benefits to which you are entitled under this Agreement, you then the Executive will be entitled to receive an additional payment from the Company (a "“Gross-Up Payment"”) in cash, in an amount such that after you pay payment by the Executive of all taxes (including, without limitation, (i) any income taxes (and any interest and or penalties imposed with respect thereto) to such taxes and (ii) any Excise Tax, ) imposed upon the Gross-Up Payment, you will retain the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the The amount of payments under this Article 6 (the "Parachute Gross-up") shall Up Payment will be computed and made in writing calculated by the Employer's then Company’s independent public accountants (the "Accountants")accounting firm, whose determination shall be, subject engaged immediately prior to the Employee's reasonable approval of event that triggered the calculations required under this Article 6payment, conclusive and binding upon in consultation with the Employee and the Employer for all purposesCompany’s outside legal counsel. For purposes of making the calculations required by this Section 4Section, the Accountants accounting firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code, provided that the accounting firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). You and The Gross-Up Payment will be paid on the Executive’s last day of employment or on the occurrence of the event that results in the imposition of the Excise Tax, if later. If the precise amount of the Gross-Up Payment cannot be determined on the date it is to be paid, an amount equal to the best estimate of the Gross-Up Payment will be made on that date and, within 10 days after the precise calculation is obtained, either the Company shall furnish will pay any additional amount to the Accountants such information and documents Executive or the Executive will pay any excess amount to the Company, as the Accountants case may be. If subsequently the Internal Revenue Service (the “IRS”) claims that any additional Excise Tax is owing, an additional Gross-Up Payment will be paid to the Executive within 30 days of the Executive providing substantiation of the claim made by the IRS. After payment to the Executive of the Gross-Up Payment, the Executive will provide to the Company any information reasonably request requested by the Company relating to the Excise Tax, the Executive will take those actions as the Company reasonable requests to contest the Excise Tax, cooperate in order good faith with the Company to make a determination under this Section 4effectively contest the Excise Tax and permit the Company to participate in any proceedings contesting the Excise Tax. The Company shall will bear and pay directly all costs and expenses (including any interest or penalties on the Accountants may reasonably incur in connection with Excise Tax), and indemnify and hold the Executive harmless, on an after-tax basis, from all such costs and expenses related to such contest. Should it ultimately be determined that any calculations contemplated by this Section 4amount of an Excise Tax is not properly owed, the Executive will refund to the Company the related amount of the Gross-Up Payment.

Additional Payments. (a) If all, or Notwithstanding any portion, of the payments or other benefits provided under any section provisions of this Agreement, either alone whether or together not there occurs a Termination of Employment, in the event it shall be determined that any payment or benefit received or to be received by the Executive in connection with other payments and benefits that you receive or are entitled to receive from a Change of Control of the Company or its affiliatesthe termination of the Executive's employment, (whether pursuant to the terms of this Agreement or not under an existing any other plan, arrangement or other agreement) agreement with the Company, any entity whose actions result in a Change of Control of the Company or any entity affiliated with the Company or such entity (collectively the any such payment or benefit being hereinafter called a "Payment," and all such payments and benefits being hereinafter called "Total Payments"), would be subject (in whole or part) would constitute an excess "parachute payment" within to the meaning of excise tax under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an ), or any interest or penalties incurred with respect to such excise tax under Section 4999 of the Code, (such excise tax, together with any such interest and penalties related theretopenalties, are hereinafter collectively referred to as the "Excise Tax") then), in addition then the Company shall pay to any other benefits to which you are entitled under this Agreement, you will be entitled to receive the Executive an additional payment amount (a the "Gross-Up Payment") in cash, in an amount such that the net amount retained by the Executive, after you pay deduction of any Excise Tax on the Total Payments and any federal, state and local income tax, FICA and Excise Tax upon the payment provided for by this Section 3, shall be equal to the Total Payments. Subject to the provisions of this Section 3, all taxes includingdeterminations required to be made under this Section 3, without limitationincluding whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm selected by the Executive that is not then serving as accountant or auditor for the individual, entity or group effecting the Change of Control of the Company (the "Accounting Firm"), which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. 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 3, shall be paid by the Company to the Executive within 10 days of the receipt of the Accounting Firm's determination. Subject to the following provisions of this Section 3, any determination by the Accounting Firm shall be binding upon the Company and the Executive. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax, FICA and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax, FICA and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax under this Section 3, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have effectively waived in writing shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which in the opinion of the Auditor (or tax counsel selected by the Auditor) does not constitute a "parachute payment" within the meaning of Section 280G(b) (2) of the Code (including by reason of Section 280G(b) (4) (A) of the Code), and in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b) (4) (B) of the Code, in excess of the "base amount" (as defined in Section 280G(b) (3) of the Code) allocable to such reasonable compensation, and (iii) the value of any income taxes noncash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Auditor in accordance with the principles of Sections 280G(d) (and any interest and penalties imposed with respect thereto3) and (ii4) any Excise Tax, imposed upon of the Code. For purposes of determining the amount of the Gross-Up Payment, you will retain an amount the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date of payment of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and the Company otherwise agree in writingExecutive, any determination required under this Section 4, including without limitation, the amount of payments under this Article 6 (the "Parachute Gross-up") shall be computed and made in writing by the Employer's then independent public accountants (the "Accountants"), whose determination shall be, subject to the Employee's reasonable approval net of the calculations required under this Article 6, conclusive maximum reduction in federal income taxes that could be obtained from deduction of such state and binding upon the Employee and the Employer for all purposeslocal taxes. For purposes of making the calculations required by this Section 4, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You The Executive and the Company shall furnish to each reasonably cooperate with the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur other in connection with any calculations contemplated by this Section 4administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Additional Payments. (a) If allAnything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any payment or any portion, distribution by the Company to or for the benefit of the payments Employee (whether paid or other benefits provided under any section payable or distributed or distributable pursuant to the terms of this AgreementAgreement or otherwise, either alone or together with other but determined without regard to any additional payments and benefits that you receive or are entitled to receive from the Company or its affiliates, (whether or not required under an existing plan, arrangement or other agreementthis Section 11) (collectively the a "PaymentsPayment") would constitute an excess "parachute payment" within be subject to the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under imposed by Section 4999 of the Code, Code or any interest or penalties are incurred by the Employee with respect to such excise tax (such excise tax, together with any such interest and penalties related theretopenalties, are hereinafter collectively referred to as the "Excise Tax") then), in addition to any other benefits to which you are entitled under this Agreement, you will then the Employee shall be entitled to receive an additional payment (a "Gross-Up Payment") in cash, in an amount such that after you pay payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, (i) any income taxes (and any interest and penalties imposed with respect thereto) and (ii) any Excise Tax, Tax imposed upon the Gross-Up Payment, you will retain the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and Notwithstanding the Company otherwise agree in writing, any determination required under foregoing provisions of this Section 411.1, including without limitationif it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Payments do not exceed 110% of the greatest amount of payments under this Article 6 (the "Parachute Reduced Amount") that could be paid to the Employee such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-up") Up Payment shall be computed and made in writing by the Employer's then independent public accountants (the "Accountants"), whose determination shall be, subject to the Employee's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposes. For purposes of making Payments, in the calculations required by this Section 4aggregate, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You and the Company shall furnish be reduced to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4Reduced Amount.

Additional Payments. (a) If allFor each of Fiscal Years 2017, 2018 and 2019, the Limited Partner shall receive cash payments from one or any portion, more of the payments Partnership or the other benefits Operating Group Entities in the aggregate amount of $4 million per Fiscal Year ("Additional Payments"). The aggregate Additional Payments with respect to each such Fiscal Year shall be paid by one or more of the Operating Group Entities quarterly in advance, with an aggregate amount of $1 million to be paid by the Operating Group Entities to the Limited Partner on the first business day of each calendar quarter of such Fiscal Year; provided under any section that the Additional Payment with respect to the first calendar quarter of Fiscal Year 2017 shall be made as soon as reasonably practicable but no later than the first business day of the calendar month following the date of this Agreement, either alone or together with other payments and benefits that you receive or are entitled to receive from . Each quarterly Additional Payment shall reduce the Company or its affiliates, excess (whether or not under an existing plan, arrangement or other agreementif any) (collectively the "Payments") would constitute an excess "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under Section 4999 of the Code, (such excise tax, together with any interest and penalties related thereto, are hereinafter collectively referred to as the "Excise Tax") then, in addition to any other benefits to which you are entitled under this Agreement, you will be entitled to receive an additional payment (a "Gross-Up Payment") in cash, in an amount such that after you pay all taxes including, without limitation, (i) any income taxes the aggregate cash distributions in respect of such quarter of such Fiscal Year that would otherwise have been made by the Operating Group Entities to the Limited Partner and his Related Trusts in respect of all of their Common Units in the Operating Group Entities (and any interest and penalties imposed each, a "Quarterly Distribution") or other interests in the Operating Group Entities (other than Tax Liability Payments (as defined below)) (such distributions, including Quarterly Distributions, "Partnership Distributions") over (ii) the Limited Partner's Presumed Tax Liability (as calculated for purposes of this Agreement based on the Aggregate Presumed Tax Rate rather than the Presumed Tax Rate) with respect theretoto such quarter for all Operating Group Entities (such excess, the "After-Tax Distribution Amount"). Any Additional Payment not applied to reduce an After-Tax Distribution Amount shall be applied to reduce the next quarter's After-Tax Distribution Amount and each subsequent quarter's After-Tax Distribution Amount until the full aggregate amount of all prior Additional Payments have been applied to reduce After-Tax Distribution Amounts; provided, that (i) the quarterly Additional Payments made during one Fiscal Year may only be applied to reduce After-Tax Distribution Amounts with respect to the same Fiscal Year and (ii) any Excise Taxto the extent the aggregate Additional Payments plus After-Tax Distribution Amounts with respect to a Fiscal Year equal at least $4 million, imposed upon no further Additional Payments shall be made with respect to such Fiscal Year. For U.S. federal, state and local income tax purposes, Additional Payments shall be treated as advances of the Gross-Up Payment, you will retain an applicable Quarterly Distributions. To the extent the aggregate amount of the Gross-Up Payment equal all Additional Payments for a Fiscal Year exceed applicable Partnership Distributions for such Fiscal Year (excluding any Partnership Distributions with respect to prior Fiscal Years), such excess shall be treated as a distributive share of profits with respect to the Excise Limited Partner's Class C Non-Equity Interests of the relevant Operating Group Entity. To the extent that, following the end of any Fiscal Year, the General Partner determines that any After-Tax imposed upon Distribution Amounts should be recalculated based on the Payments. Unless you actual taxable income allocated to the Limited Partner, the Partnership or one of the other Operating Group Entities will make a payment to the Limited Partner as an adjustment to the relevant prior Additional Payment(s) or Partnership Distributions for such Fiscal Year, or the Operating Group Entities shall reduce subsequent distributions or payments to the Limited Partner as provided above, as applicable, to effect the recalculation (and the Company otherwise agree in writing, any determination required under such adjustment shall be ignored for purposes of this Section 4, including without limitation, 5(a) for the amount of payments under this Article 6 (Fiscal Year for which the "Parachute Gross-up") shall be computed and made in writing by the Employer's then independent public accountants (the "Accountants"adjustment is made), whose determination shall be, subject to the Employee's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposes. For purposes of making the calculations required by this Section 4, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4.

Additional Payments. (a) If allFor each of Fiscal Years 2017, 2018 and 2019, the Limited Partner shall receive cash payments from one or any portion, more of the payments Partnership or the other benefits Operating Group Entities in the aggregate amount of $2 million per Fiscal Year (“Additional Payments”). The aggregate Additional Payments with respect to each such Fiscal Year shall be paid by one or more of the Operating Group Entities quarterly in advance, with an aggregate amount of $500,000 to be paid by the Operating Group Entities to the Limited Partner on the first business day of each calendar quarter of such Fiscal Year; provided under any section that the Additional Payment with respect to the first calendar quarter of Fiscal Year 2017 shall be made as soon as reasonably practicable but no later than the first business day of the calendar month following the date of this Agreement, either alone or together with other payments and benefits that you receive or are entitled to receive from . Each quarterly Additional Payment shall reduce the Company or its affiliates, excess (whether or not under an existing plan, arrangement or other agreementif any) (collectively the "Payments") would constitute an excess "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under Section 4999 of the Code, (such excise tax, together with any interest and penalties related thereto, are hereinafter collectively referred to as the "Excise Tax") then, in addition to any other benefits to which you are entitled under this Agreement, you will be entitled to receive an additional payment (a "Gross-Up Payment") in cash, in an amount such that after you pay all taxes including, without limitation, (i) any income taxes the aggregate cash distributions in respect of such quarter of such Fiscal Year that would otherwise have been made by the Operating Group Entities to the Limited Partner and his Related Trusts in respect of all of their Common Units in the Operating Group Entities (and any interest and penalties imposed each, a “Quarterly Distribution”) or other interests in the Operating Group Entities (such distributions, including Quarterly Distributions, “Partnership Distributions”) over (ii) the Limited Partner’s Presumed Tax Liability (as calculated for purposes of this Agreement based on the Aggregate Presumed Tax Rate (as defined herein) rather than the Presumed Tax Rate) with respect theretoto such quarter for all Operating Group Entities (such excess, the “After-Tax Distribution Amount”). Any Additional Payment not applied to reduce an After-Tax Distribution Amount shall be applied to reduce the next quarter’s After-Tax Distribution Amount and each subsequent quarter’s After-Tax Distribution Amount until the full aggregate amount of all prior Additional Payments have been applied to reduce After-Tax Distribution Amounts; provided, that (i) the quarterly Additional Payments made during one Fiscal Year may only be applied to reduce After-Tax Distribution Amounts with respect to the same Fiscal Year and (ii) any Excise Taxto the extent the aggregate Additional Payments plus After-Tax Distribution Amounts with respect to a Fiscal Year equal at least $2 million, imposed upon no further Additional Payments shall be made with respect to such Fiscal Year. For U.S. federal, state and local income tax purposes, Additional Payments shall be treated as advances of the Gross-Up Payment, you will retain an applicable Quarterly Distributions. To the extent the aggregate amount of all Additional Payments for a Fiscal Year exceed applicable Partnership Distributions for such Fiscal Year (excluding any Partnership Distributions with respect to prior Fiscal Years), such excess shall be treated as a distributive share of profits with respect to the GrossLimited Partner’s Class C Non-Up Payment Equity Interests of the relevant Operating Group Entity. To the extent that, following the end of any Fiscal Year, the General Partner determines that any After-Tax Distribution Amounts should be recalculated based on the actual taxable income allocated to the Limited Partner, the Partnership or one of the other Operating Group Entities will make a payment to the Limited Partner as an adjustment to the relevant prior Additional Payment(s) or Partnership Distributions for such Fiscal Year, or the Operating Group Entities shall reduce subsequent distributions or payments to the Limited Partner as provided above, as applicable, to effect the recalculation (and such adjustment shall be ignored for purposes of this Section 5(a) for the Fiscal Year for which the adjustment is made). If the Limited Partner is subject to a Withdrawal due to Resignation prior to December 31, 2019, the After-Tax Distribution Amount of Partnership Distributions to be made to the Limited Partner and his Related Trusts following the date of such Withdrawal shall be reduced by an aggregate amount equal to the Excise Tax imposed upon sum of all of the Payments. Unless you and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the amount of payments under this Article 6 (the "Parachute Gross-up") shall be computed and Additional Payments made in writing by the Employer's then independent public accountants (the "Accountants"), whose determination shall be, subject to the Employee's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposes. For purposes of making the calculations required by this Section 4, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You and the Company shall furnish Limited Partner prior to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4date.

Additional Payments. (a) If all, or any portion, of Notwithstanding the payments or other benefits provided under any section foregoing provisions of this AgreementSection 3, either alone or together with other payments and benefits in the event that you receive or are entitled to receive from the Company or its affiliates, (whether or not under an existing plan, arrangement or other agreement) (collectively the "Payments") would constitute an excess "parachute payment" Executive is a “specified employee” within the meaning of Section 280G 409A of the Internal Revenue Code (as determined in accordance with the methodology established by the Company as in effect on the Date of 1986Termination) (a “Specified Employee”), as amended the severance payment and, to the extent (i) the Executive is not a Covered Employee for the fiscal year of the Company in which the Date of Termination occurs and (ii) such termination occurs during the 162(m) Reliance Period, the pro-rata incentive payment shall instead be paid to the Executive, with interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code (“Interest”) on the first business day after the date that is six months following the Executive’s “separation from service” within the meaning of Section 409A of the Code (the "Code"“Delayed Payment Date”). Notwithstanding the foregoing provisions of this Section 3 or anything in this Agreement to the contrary, the Medical Benefits that are not non-taxable medical benefits, “disability pay” or “death benefit” plans within the meaning of Treasury Regulation Section 1.409A-1(a)(5) shall be provided and would result administered in a manner that complies with Treasury Regulation Section 1.409A-3(i)(1)(iv), which requires that (i) the imposition on you amount of an excise tax under such benefits provided during one taxable year shall not affect the amount of such benefits provided in any other taxable year, except that to the extent such benefits consist of the reimbursement of expenses referred to in Section 4999 105(b) of the Code, (a maximum, if provided under the terms of the plan providing such excise taxMedical Benefit, together with any interest and penalties related theretomay be imposed on the amount of such reimbursements over some or all of the period in which such benefit is to be provided to the Executive, are hereinafter collectively referred to as the "Excise Tax") thendescribed in Treasury Regulation Section 1.409A-3(i)(iv)(B), in addition to any other benefits to which you are entitled under this Agreement, you will be entitled to receive an additional payment (a "Gross-Up Payment") in cash, in an amount such that after you pay all taxes including, without limitation, (i) any income taxes (and any interest and penalties imposed with respect thereto) and (ii) to the extent that any Excise Taxsuch benefits consist of reimbursement of eligible expenses, imposed upon such reimbursement must be made on or before the Gross-Up Payment, you will retain an amount last day of the Gross-Up Payment equal to Executive’s taxable year following the Excise Tax imposed upon taxable year in which the Payments. Unless you expense was incurred and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation(iii) no such benefit may be liquidated or exchanged for another benefit (such treatment, the amount of payments under this Article 6 (the "Parachute Gross-up") shall be computed and made in writing by the Employer's then independent public accountants (the "Accountants"“409A Medical Benefits Treatment”), whose determination shall be, subject to the Employee's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposes. For purposes of making the calculations required by this Section 4, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4.

Additional Payments. (a) If allIn the event that Xxxxxxx becomes entitled to payments under paragraph 5(a), 5(b), or any portion, of the payments or other benefits provided under any section 5(c) of this Agreement, either alone or together with other payments and benefits that you receive or are entitled to receive from the Company or shall cause its affiliatesindependent auditors promptly to review, (whether or not under an existing planat the Company's sole expense, arrangement or other agreement) (collectively the "Payments") would constitute an excess "parachute payment" within the meaning applicability of Section 280G 4999 of the Internal Revenue Code to such payments. If such auditors shall determine that any payment or distribution of 1986any type by the Company to Xxxxxxx or for his benefit, as amended whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "CodeTotal Payments") and ), would result in be subject to the imposition on you of an excise tax under imposed by Section 4999 of the Code, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties related theretopenalties, are hereinafter collectively referred to as the "Excise Tax") then), in addition to any other benefits to which you are entitled under this Agreement, you will then Xxxxxxx shall be entitled to receive an additional cash payment (a "Gross-Up Payment") in cash, in within 30 days of such determination equal to an amount such that after you pay payment by Xxxxxxx of all taxes including, without limitation, (i) any income taxes (and including any interest and or penalties imposed with respect thereto) and (ii) to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, you will Xxxxxxx would retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. Unless you and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the amount of payments under this Article 6 (the "Parachute Gross-up") shall be computed and made in writing by the Employer's then independent public accountants (the "Accountants"), whose determination shall be, subject to the Employee's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposes. For purposes of making the calculations foregoing determination, Xxxxxxx'x tax rate shall be deemed to be the highest statutory marginal state and Federal tax rate (on a combined basis) (including Xxxxxxx'x share of F.I.C.A. and Medicare taxes) then in effect. If no determination by the Company's auditors is made prior to the time a tax return reflecting the Total Payments is required to be filed by Xxxxxxx, he will be entitled to receive a Gross-Up Payment calculated on the basis of the Total Payments reported by Xxxxxxx in such tax return, within 30 days of the filing of such tax return. In all events, if any tax authority determines that a greater Excise Tax should be imposed upon the Total Payments than is determined by the Company's independent auditors or reflected in Xxxxxxx'x tax return pursuant to this Section 46, Xxxxxxx shall be entitled to receive the Accountants may rely full Gross-Up Payment calculated on reasonable, good faith interpretations concerning the application of Section 280G and 4999 basis of the Code. You and amount of Excise Tax determined to be payable by such tax authority from the Company shall furnish to the Accountants within 30 days of such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4determination.

Additional Payments. (ai) If allIn all events, if any payments to the Executive from the Company, or any portionvesting of options, of whether occurring pursuant to Section 7 hereof or otherwise made to the payments or other benefits provided under any section of this Agreement, either alone or together with other payments and benefits that you receive or are entitled to receive from Executive by the Company or its affiliates, (whether or not under an existing plan, arrangement or other agreement) (collectively the "Payments") would constitute an excess "parachute payment" within ), are or will be subject to the meaning of tax imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the "CodeIRC") and would result in the imposition on you of an excise tax under Section 4999 of the Code, (such excise tax, together with any interest and penalties related thereto, are hereinafter collectively referred to as the "Excise Tax") then(or any similar tax that may hereafter be imposed), the Company shall pay to the appropriate taxing authorities on behalf of the Executive at the time specified in addition to any other benefits to which you are entitled under this Agreement, you will be entitled to receive subsection 7(i)(iii) below an additional payment amount (a the "Gross-Up Payment") in cash, in an amount such that the net amount retained by him, after you pay reduction by all taxes includingExcise Taxes, without limitationand all federal, (i) any state and local income taxes (on the Payments and any interest and penalties imposed with respect thereto) and (ii) any Excise Tax, imposed upon the Gross-Up Payment, you shall be equal to the net amount which would have been retained by him had no part of the Payments been subject to the Excise Tax. For purposes of determining whether any of the Payments will retain an be subject to the Excise Tax and the amount of such Excise Tax, (A) all payments or benefits received or to be received by the Executive in connection with his termination of employment (whether pursuant to the terms of this Agreement or any Company Compensation Plan), shall be treated as "parachute payments" within the meaning of IRC Section 280G(b)(2), and all "excess parachute payments" within the meaning of IRC Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless (i) the Executive otherwise agrees in writing that IRC Section 4999 is not applicable, or (ii) in the opinion of tax counsel selected by the Company's independent auditors, and acceptable to the Executive ("Counsel"), such 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 IRC Section 280G(b)(4) in excess of the base amount within the meaning of IRC Section 280G(b)(3), or are otherwise not subject to the Excise Tax, (B) the amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (1) the total amount of the Payments or (2) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (A), above), and (C) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of IRC Sections 280G(d)(3) and (4). For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal, state and local taxes at the highest marginal rate of federal, state and local income taxation, respectively, in the calendar year in which the Gross-Up Payment is to be made. In the event that the Excise Tax is at any time determined by Counsel or by the Internal Revenue Service ("IRS") to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment or thereafter (including, without limitation, by reason of (A) a preliminary determination by the parties that no Gross-Up Payment was due under this subsection 7(i) or (B) a determination which otherwise underestimates the amount of the Gross-Up Payment equal due under this subsection 7(i)), the Company shall make an additional Gross-Up Payment in respect of such excess (plus all interest and penalties payable with respect to such excess) at the time the amount of such excess is finally determined. In the event that the Excise Tax imposed upon is subsequently determined by Counsel or pursuant to any proceeding or negotiations with the Payments. Unless you and Internal Revenue Service to be less than the Company otherwise agree amount taken into account hereunder in writingcalculating the Gross-Up Payment made, any determination required under this Section 4the Executive shall repay to the Company, including without limitation, at the time that the amount of payments under this Article 6 (such reduction in the "Parachute Excise Tax is finally determined, the portion of such prior Gross-up") shall Up Payment that would not have been paid if such Excise Tax had been correctly applied in initially calculating such Gross-Up Payment, plus interest on the amount of such repayment at the rate provided in IRC Section 1274(b)(2)(B). Notwithstanding the foregoing, in the event any portion of the Gross-Up Payment to be computed and made in writing by the Employer's then independent public accountants (the "Accountants"), whose determination shall be, subject refunded to the Employee's reasonable approval Company has been paid to any Federal, state or local tax authority, repayment thereof shall not be required until actual refund or credit of such portion has been made to the calculations required under this Article 6Executive, conclusive and binding upon interest payable to the Employee and Company shall not exceed interest received or credited to the Employer Executive by such tax authority for all purposesthe period it held such portion. For purposes of making the calculations required by this Section 4, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You The Executive and the Company shall furnish mutually agree upon the course of action to be pursued (and the Accountants such information and documents as method of allocating the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs expenses thereof) if the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4Executive's good faith claim for refund or credit is denied.

Additional Payments. (a) If all, or any portion, of the payments or other benefits provided under any section of this Agreement, either alone or together with other payments and benefits that you receive or are entitled to receive from the Company or its affiliates, (whether or not under an existing plan, arrangement or other agreement) (collectively the "Payments") would constitute an excess "parachute payment" payment within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under Section 4999 of the Code, (such excise tax, together with any interest and penalties related thereto, are hereinafter collectively referred to as the "Excise Tax") then, in addition to any other benefits to which you are entitled under this Agreement, you will be entitled to receive an additional payment (a "Gross-Up Payment") in cash, in an amount such that after you pay all taxes including, without limitation, (i) any income taxes (and any interest and penalties imposed with respect thereto) and (ii) any Excise Tax, imposed upon the Gross-Up Payment, you will retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the amount of payments under this Article 6 (the "Parachute Gross-up") shall be computed and made in writing by the Employer's ’s then independent public accountants (the "Accountants"), whose determination shall be, subject to the Employee's ’s reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposes. For purposes of making the calculations required by this Section 4, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4.

Additional Payments. (a) If all, Notwithstanding anything in this Agreement or any portionother agreement to the contrary, in the event it is determined that any payments or distributions (including, without limitation, the vesting of an option or other non-cash benefit or property or the forgiveness of any indebtedness) by the Corporation or any affiliate (as defined under the Securities Act of 1933, as amended, and the regulations thereunder) thereof or any other person to or for the benefit of the payments Executive, whether paid or other benefits provided under any section payable pursuant to the terms of this Agreement, either alone or together pursuant to any other agreement or arrangement with other payments and benefits that you receive the Corporation or are entitled any such affiliate (“Payments”), would be subject to receive from the Company or its affiliates, (whether or not under an existing plan, arrangement or other agreement) (collectively the "Payments") would constitute an excess "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under imposed by Section 4999 of the Code, or any successor provision, or any interest or penalties with respect to the excise tax (such the excise tax, together with any interest and penalties related theretopenalties, are hereinafter collectively referred to as the "“Excise Tax") then”), in addition to any other benefits to which you are entitled under this Agreement, you then the Executive will be entitled to receive an additional payment from the Corporation (a "“Gross-Up Payment"”) in cash, in an amount such that after you pay payment by the Executive of all taxes (including, without limitation, (i) any income taxes (and any interest and or penalties imposed with respect thereto) to such taxes and (ii) any Excise Tax, ) imposed upon the Gross-Up Payment, you will retain the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the The amount of payments under this Article 6 (the "Parachute Gross-up") shall Up Payment will be computed and made in writing calculated by the Employer's then Corporation’s independent public accountants (the "Accountants")accounting firm, whose determination shall be, subject engaged immediately prior to the Employee's reasonable approval of event that triggered the calculations required under this Article 6payment, conclusive and binding upon in consultation with the Employee and the Employer for all purposesCorporation’s outside legal counsel. For purposes of making the calculations required by this Section 4Section, the Accountants accounting firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code, provided that the accounting firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). You and The Gross-Up Payment will be paid on the Company shall furnish Executive’s last day of employment or on the occurrence of the event that results in the imposition of the Excise Tax, if later. If the precise amount of the Gross-Up Payment cannot be determined on the date it is to be paid, an amount equal to the Accountants such information and documents best estimate of the Gross-Up Payment will be made on that date and, within 10 days after the precise calculation is obtained, either the Corporation will pay any additional amount to the Executive or the Executive will pay any excess amount to the Corporation, as the Accountants case may be. If subsequently the Internal Revenue Service (the “IRS”) claims that any additional Excise Tax is owing, an additional Gross-Up Payment will be paid to the Executive within 30 days of the Executive providing substantiation of the claim made by the IRS. After payment to the Executive of the Gross-Up Payment, the Executive will provide to the Corporation any information reasonably request requested by the Corporation relating to the Excise Tax, the Executive will take those actions as the Corporation reasonable requests to contest the Excise Tax, cooperate in order good faith with the Corporation to make a determination under this Section 4effectively contest the Excise Tax and permit the Corporation to participate in any proceedings contesting the Excise Tax. The Company shall Corporation will bear and pay directly all costs and expenses (including any interest or penalties on the Accountants may reasonably incur in connection with Excise Tax), and indemnify and hold the Executive harmless, on an after-tax basis, from all such costs and expenses related to such contest. Should it ultimately be determined that any calculations contemplated by this Section 4amount of an Excise Tax is not properly owed, the Executive will refund to the Corporation the related amount of the Gross-Up Payment.

Additional Payments. (a) If all, In the event that any payment or any portion, of the payments or other benefits provided under any section of this Agreement, either alone or together with other payments and benefits that you receive or are entitled to receive from the Company or its affiliates, benefit (whether or not under an existing plan, arrangement or other agreement) (collectively the "Payments") would constitute an excess "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code")), to the Employee or for his benefit paid or payable or distributed or distributable (at any time or from time to time) and pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, his employment with the Company or a change in ownership or effective control of the Company or of a substantial portion of its assets (a "Payment" or "Payments"), would result in be subject to the imposition on you of an excise tax under imposed by Section 4999 of the Code, Code or any interest or penalties are incurred by the Employee with respect to such excise tax (such excise tax, together with any such interest and penalties related theretopenalties, are being hereinafter collectively referred to as the "Excise Tax") then), in addition to any other benefits to which you are entitled under this Agreement, you then the Employee will be entitled to receive an additional payment or payments, as the case may be (referred to individually or collectively as a "Gross-Up Payment") in cash, in an amount such that after you pay payment by the Employee of all taxes including(including any interest or penalties imposed with respect to such taxes and the Excise Tax, without limitation, (i) any income taxes (and any other than interest and penalties imposed with respect thereto) and (ii) by reason of the Employee's failure to file timely a tax return or pay taxes shown due on his return), including any Excise Tax, Tax imposed upon the Gross-Up Payment, you will retain the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you 3 (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the amount of payments under this Article 6 such Gross-Up Payment shall be made at the Company's expense by an accounting firm selected by the Company and reasonably acceptable to the Employee which is designated as one of the largest national accounting firms in the United States (the "Parachute Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation to the Company and the Employee within ten (10) days of the Termination Date, as defined in Section 15, or such other time as requested by the Company or by the Employee (provided the Employee reasonably believes that any of the Payments may be subject to the Excise Tax) and if the Accounting Firm determines that no Excise Tax is payable by the Employee with respect to a Payment or Payments, it shall furnish the Employee with an opinion reasonably acceptable to the Employee that he has substantial authority not to report any Excise Tax on his federal tax return with respect to any such Payment or Payments. Within ten (10) days of the delivery of the Determination to the Employee, the Employee shall have the right to dispute the Determination. The Gross-up"Up Payment, if any, as determined pursuant to this Section 6(b) shall be computed and made in writing paid by the Employer's then independent public accountants Company to the Employee within five (5) days of the "Accountants"), whose determination receipt of the Determination. The existence of the dispute shall be, subject to not in any way affect the Employee's reasonable approval right to receive the Gross-Up Payment in accordance with the Determination. Upon the final resolution of the calculations required under this Article 6a dispute, conclusive and binding upon the Employee and the Employer for all purposes. For purposes of making the calculations required by this Section 4, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You and the Company shall furnish promptly pay to the Accountants Employee any additional amount required by such information resolution. If there is no dispute, the Determination shall be binding, final and documents as conclusive upon the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs and the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4Employee.

Additional Payments. (a) If allAnything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any payment or any portion, of the payments or other benefits provided under any section of this Agreement, either alone or together with other payments and benefits that you receive or are entitled to receive from distribution by the Company or its affiliates, the affiliated companies to or for the benefit of the Employee (whether paid or not payable or distributed or distributable pursuant to the terms of this Agreement or otherwise but determined without regard to any additional payments required under an existing plan, arrangement or other agreement) this Section 8) (collectively the "PaymentsPayment") would constitute an excess "parachute payment" within be subject to the meaning of excise tax imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the "Code") and would result in ), or any interest or penalties are incurred by the imposition on you of an Employee with respect to such excise tax under Section 4999 of the Code, (such excise tax, together with any such interest and penalties related theretopenalties, are hereinafter collectively referred to as collectively, the "Excise Tax") then), in addition to any other benefits to which you are entitled under this Agreement, you will then the Employee shall be entitled to receive an additional payment (a the "Gross-Up Payment") in cash, in an amount such that after you pay payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, (i) any income taxes (and any interest and penalties imposed with respect thereto) and (ii) any Excise Tax, Tax imposed upon the Gross-Up Payment, you will retain the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and Notwithstanding the Company otherwise agree in writing, any determination required under foregoing provisions of this Section 48(a), including without limitationif it shall be determined that the Employee is entitled to the Gross-Up Payment, but that the Payments do not exceed 110% of the greatest amount that could be paid to the Employee such that the receipt of payments under this Article 6 the Payments would not give rise to any Excise Tax (the "Parachute Gross-up") shall be computed and made in writing by the Employer's then independent public accountants (the "AccountantsReduced Amount"), whose determination then no Gross-Up Payment shall be, subject be made to the Employee's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposes. For purposes of making Payments, in the calculations required by this Section 4aggregate, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You and the Company shall furnish be reduced to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4Reduced Amount.

Additional Payments. (a) If all, or any portion, of the payments or other benefits provided under any section of this Agreement, either alone or together with other payments and benefits that you receive or are entitled to receive from the Company or its affiliates, (whether or not under an existing plan, arrangement or other agreement) (collectively the "“Payments"”) would constitute an excess "“parachute payment" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "“Code"”) and would result in the imposition on you of an excise tax under Section 4999 of the Code, (such excise tax, together with any interest and penalties related thereto, are hereinafter collectively referred to as the "“Excise Tax"”) then, in addition to any other benefits to which you are entitled under this Agreement, you will be entitled to receive an additional payment (a "“Gross-Up Payment"”) in cash, in an amount such that after you pay all taxes including, without limitation, (i) any income taxes (and any interest and penalties imposed with respect thereto) and (ii) any Excise Tax, imposed upon the Gross-Up Payment, you will retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the amount of payments under this Article 6 (the "“Parachute Gross-up"”) shall be computed and made in writing by the Employer's ’s then independent public accountants (the "“Accountants"”), whose determination shall be, subject to the Employee's ’s reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposes. For purposes of making the calculations required by this Section 4, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4.

Additional Payments. (a) If allNotwithstanding anything in this Agreement, the 2000 Equity Award Plan, or any portionother agreement or plan to the contrary, in the event it is determined that any payments or distributions by the Corporation or any affiliate (as defined under the Securities Act of 1933, as amended, and the regulations thereunder) thereof or any other person to or for the benefit of the payments Executive, whether paid or other benefits provided under any section payable pursuant to the terms of this Agreement, either alone or together pursuant to any other agreement or arrangement with other payments and benefits that you receive the Corporation or are entitled any such affiliate (“Payments”), would be subject to receive from the Company or its affiliates, (whether or not under an existing plan, arrangement or other agreement) (collectively the "Payments") would constitute an excess "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under imposed by Section 4999 of the Code, or any successor provision, or any interest or penalties with respect to the excise tax (such the excise tax, together with any interest and penalties related theretopenalties, are hereinafter collectively referred to as the "“Excise Tax") then”), in addition to any other benefits to which you are entitled under this Agreement, you then the Executive will be entitled to receive an additional payment from the Corporation (a "“Gross-Up Payment"”) in cash, in an amount such that after you pay payment by the Executive of all taxes (including, without limitation, (i) any income taxes (and any interest and or penalties imposed with respect thereto) to such taxes and (ii) any Excise Tax, ) imposed upon the Gross-Up Payment, you will retain the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the The amount of payments under this Article 6 (the "Parachute Gross-up") shall Up Payment will be computed and made in writing calculated by the Employer's then Corporation’s independent public accountants (the "Accountants")accounting firm, whose determination shall be, subject engaged immediately prior to the Employee's reasonable approval of event that triggered the calculations required under this Article 6payment, conclusive and binding upon in consultation with the Employee and the Employer for all purposesCorporation’s outside legal counsel. For purposes of making the calculations required by this Section 4Section, the Accountants accounting firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code, provided that the accounting firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). You and The Gross-Up Payment will be paid on the Company shall furnish Executive’s last day of employment or on the occurrence of the event that results in the imposition of the Excise Tax, if later. If the precise amount of the Gross-Up Payment cannot be determined on the date it is to be paid, an amount equal to the Accountants such information and documents best estimate of the Gross-Up Payment will be made on that date and, within 10 days after the precise calculation is obtained, either the Corporation will pay any additional amount to the Executive or the Executive will pay any excess amount to the Corporation, as the Accountants case may be. If subsequently the Internal Revenue Service (the “IRS”) claims that any additional Excise Tax is owing, an additional Gross-Up Payment will be paid to the Executive within 30 days of the Executive providing substantiation of the claim made by the IRS. After payment to the Executive of the Gross-Up Payment, the Executive will provide to the Corporation any information reasonably request requested by the Corporation relating to the Excise Tax, the Executive will take those actions as the Corporation reasonable requests to contest the Excise Tax, cooperate in order good faith with the Corporation to make a determination under this Section 4effectively contest the Excise Tax and permit the Corporation to participate in any proceedings contesting the Excise Tax. The Company shall Corporation will bear and pay directly all costs and expenses (including any interest or penalties on the Accountants may reasonably incur in connection with Excise Tax), and indemnify and hold the Executive harmless, on an after-tax basis, from all such costs and expenses related to such contest. Should it ultimately be determined that any calculations contemplated by this Section 4amount of an Excise Tax is not properly owed, the Executive will refund to the Corporation the related amount of the Gross-Up Payment.

Additional Payments. (a) If all, or Notwithstanding any portion, of the payments or other benefits provided under any section provisions of this Agreement, either alone whether or together not there occurs a Termination of Employment, in the event it shall be determined that any payment or benefit received or to be received by the Executive in connection with other payments and benefits that you receive or are entitled to receive from a Change of Control of the Company or its affiliatesthe termination of the Executive's employment, (whether pursuant to the terms of this Agreement or not under an existing any other plan, arrangement or other agreement) agreement with the Company, any entity whose actions result in a Change of Control of the Company or any entity affiliated with the Company or such entity (collectively the any such payment or benefit being hereinafter called a "Payment," and all such payments and benefits being hereinafter called "Total Payments"), would be subject (in whole or part) would constitute an excess "parachute payment" within to the meaning of excise tax under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an ), or any interest or penalties incurred with respect to such excise tax under Section 4999 of the Code, (such excise tax, together with any such interest and penalties related theretopenalties, are hereinafter collectively referred to as the "Excise Tax") then), in addition then the Company shall pay to any other benefits to which you are entitled under this Agreement, you will be entitled to receive the Executive an additional payment amount (a the "Gross-Up Payment") in cash, in an amount such that the net amount retained by the Executive, after you pay deduction of any Excise Tax on the Total Payments and any federal, state and local income tax, FICA and Excise Tax upon the payment provided for by this Section 3, shall be equal to the Total Payments. Subject to the provisions of this Section 3, all taxes includingdeterminations required to be made under this Section 3, without limitationincluding whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm selected by the Executive that is not then serving as accountant or auditor for the individual, entity or group effecting the Change of Control of the Company (the "Accounting Firm"), which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. 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 3, shall be paid by the Company to the Executive within 10 days of the receipt of the Accounting Firm's determination. Subject to the following provisions of this Section 3, any determination by the Accounting Firm shall be binding upon the Company and the Executive. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax, FICA and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax, FICA and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax under this Section 3, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have effectively waived in writing shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which in the opinion of the Auditor (or tax counsel selected by the Auditor) does not constitute a "parachute payment" within the meaning of Section 280G(b) (2) of the Code (including by reason of Section 280G(b) (4) (A) of the Code), and in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the "base amount" (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, and (iii) the value of any income taxes noncash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Auditor in accordance with the principles of Sections 280G(d) (and any interest and penalties imposed with respect thereto3) and (ii4) any Excise Tax, imposed upon of the Code. For purposes of determining the amount of the Gross-Up Payment, you will retain an amount the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date of payment of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and the Company otherwise agree in writingExecutive, any determination required under this Section 4, including without limitation, the amount of payments under this Article 6 (the "Parachute Gross-up") shall be computed and made in writing by the Employer's then independent public accountants (the "Accountants"), whose determination shall be, subject to the Employee's reasonable approval net of the calculations required under this Article 6, conclusive maximum reduction in federal income taxes that could be obtained from deduction of such state and binding upon the Employee and the Employer for all purposeslocal taxes. For purposes of making the calculations required by this Section 4, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You The Executive and the Company shall furnish to each reasonably cooperate with the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur other in connection with any calculations contemplated by this Section 4administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Additional Payments. (a) If all, Notwithstanding anything in this Agreement or any portionother agreement to the contrary, in the event it is determined that any payments or distributions (including, without limitation, the vesting of an option or other non-cash benefit or property or the forgiveness of any indebtedness) by the Company or any affiliate (as defined under the Securities Act of 1933, as amended, and the regulations thereunder) thereof or any other person to or for the benefit of the payments Executive, whether paid or other benefits provided under any section payable pursuant to the terms of this Agreement, either alone or together pursuant to any other agreement or arrangement with other payments and benefits that you receive or are entitled to receive from the Company or its affiliatesany such affiliate (“Payments”), (whether or not under an existing plan, arrangement or other agreement) (collectively would be subject to the "Payments") would constitute an excess "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under imposed by Section 4999 of the Code, or any successor provision, or any interest or penalties with respect to the excise tax (such the excise tax, together with any interest and penalties related theretopenalties, are hereinafter collectively referred to as the "“Excise Tax") then”), in addition to any other benefits to which you are entitled under this Agreement, you then the Executive will be entitled to receive an additional payment from the Company (a "“Gross-Up Payment"”) in cash, in an amount such that after you pay payment by the Executive of all taxes (including, without limitation, (i) any income taxes (and any interest and or penalties imposed with respect thereto) to such taxes and (ii) any Excise Tax, ) imposed upon the Gross-Up Payment, you will retain the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the The amount of payments under this Article 6 (the "Parachute Gross-up") shall Up Payment will be computed and made in writing calculated by the Employer's then Company’s independent public accountants (the "Accountants")accounting firm, whose determination shall be, subject engaged immediately prior to the Employee's reasonable approval of event that triggered the calculations required under this Article 6payment, conclusive and binding upon in consultation with the Employee and the Employer for all purposesCompany’s outside legal counsel. For purposes of making the calculations required by this Section 4Section, the Accountants accounting firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code, provided that the accounting firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). You and The Gross-Up Payment will be paid on the Executive’s last day of employment or on the occurrence of the event that results in the imposition of the Excise Tax, if later. If the precise amount of the Gross-Up Payment cannot be determined on the date it is to be paid, an amount equal to the best estimate of the Gross-Up Payment will be made on that date and, within 10 days after the precise calculation is obtained, either the Company shall furnish will pay any additional amount to the Accountants such information and documents Executive or the Executive will pay any excess amount to the Company, as the Accountants case may be. If subsequently the Internal Revenue Service (the “IRS”) claims that any additional Excise Tax is owing, an additional Gross-Up Payment will be paid to the Executive within 30 days of the Executive providing substantiation of the claim made by the IRS. After payment to the Executive of the Gross-Up Payment, the Executive will provide to the Company any information reasonably request requested by the Company relating to the Excise Tax, the Executive will take those actions as the Company reasonably requests to contest the Excise Tax, cooperate in order good faith with the Company to make a determination under this Section 4effectively contest the Excise Tax and permit the Company to participate in any proceedings contesting the Excise Tax. The Company shall will bear and pay directly all costs and expenses (including any interest or penalties on the Accountants may reasonably incur in connection with Excise Tax), and indemnify and hold the Executive harmless, on an after-tax basis, from all such costs and expenses related to such contest. Should it ultimately be determined that any calculations contemplated by this Section 4amount of an Excise Tax is not properly owed, the Executive will refund to the Company the related amount of the Gross-Up Payment.

Additional Payments. (a) If all, Notwithstanding anything in this Agreement or any portionother agreement to the contrary, in the event it is determined that any payments or distributions by the Corporation or any affiliate (as defined under the Securities Act of 1933, as amended, and the regulations thereunder) thereof or any other person to or for the benefit of the payments Executive, whether paid or other benefits provided under any section payable pursuant to the terms of this Agreement, either alone or together pursuant to any other agreement or arrangement with other payments and benefits that you receive the Corporation or are entitled to receive from the Company or its affiliates, any such affiliate (whether or not under an existing plan, arrangement or other agreement) (collectively the "Payments") ), would constitute an excess "parachute payment" within be subject to the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under imposed by Section 4999 of the Code, or any successor provision, or any interest or penalties with respect to the excise tax (such the excise tax, together with any interest and penalties related theretopenalties, are hereinafter collectively referred to as the "Excise Tax") then), in addition to any other benefits to which you are entitled under this Agreement, you then the Executive will be entitled to receive an additional payment from the Corporation (a "Gross-Up Payment") in cash, in an amount such that after you pay payment by the Executive of all taxes (including, without limitation, (i) any income taxes (and any interest and or penalties imposed with respect thereto) to such taxes and (ii) any Excise Tax, ) imposed upon the Gross-Up Payment, you will retain the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the The amount of payments under this Article 6 (the "Parachute Gross-up") shall Up Payment will be computed and made in writing calculated by the EmployerCorporation's then independent public accountants (the "Accountants")accounting firm, whose determination shall be, subject engaged immediately prior to the Employeeevent that triggered the payment, in consultation with the Corporation's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposesoutside legal counsel. For purposes of making the calculations required by this Section 4Section, the Accountants accounting firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code, provided that the accounting firm's determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). You and The Gross-Up Payment will be paid on the Company shall furnish Executive's last day of employment or on the occurrence of the event that results in the imposition of the Excise Tax, if later. If the precise amount of the Gross-Up Payment cannot be determined on the date it is to be paid, an amount equal to the Accountants such information and documents best estimate of the Gross-Up Payment will be made on that date and, within 10 days after the precise calculation is obtained, either the Corporation will pay any additional amount to the Executive or the Executive will pay any excess amount to the Corporation, as the Accountants case may be. If subsequently the Internal Revenue Service (the "IRS") claims that any additional Excise Tax is owing, an additional Gross-Up Payment will be paid to the Executive within 30 days of the Executive providing substantiation of the claim made by the IRS. After payment to the Executive of the Gross-Up Payment, the Executive will provide to the Corporation any information reasonably request requested by the Corporation relating to the Excise Tax, the Executive will take those actions as the Corporation reasonable requests to contest the Excise Tax, cooperate in order good faith with the Corporation to make a determination under this Section 4effectively contest the Excise Tax and permit the Corporation to participate in any proceedings contesting the Excise Tax. The Company shall Corporation will bear and pay directly all costs and expenses (including any interest or penalties on the Accountants may reasonably incur in connection with Excise Tax), and indemnify and hold the Executive harmless, on an after-tax basis, from all such costs and expenses related to such contest. Should it ultimately be determined that any calculations contemplated by this Section 4amount of an Excise Tax is not properly owed, the Executive will refund to the Corporation the related amount of the Gross-Up Payment.

Additional Payments. (ai) If allAnything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution except for the payment described in Paragraph 8(d)(ii) above (or any portionacceleration of any payment, of the payments award, benefit or other benefits provided under any section of this Agreement, either alone or together with other payments and benefits that you receive or are entitled to receive from distribution) by the Company or its affiliates, any entity which effectuates a Change in Control (whether or not under an existing plan, arrangement or other agreementchange in ownership) to or for the benefit of the Executive (collectively the "Payments") would constitute an excess "parachute payment" within be subject to the meaning of excise tax imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (amended, or any interest or penalties are incurred by the "Code") and would result in the imposition on you of an Executive with respect to such excise tax under Section 4999 of the Code, (such excise tax, together with any such interest and penalties related theretopenalties, are hereinafter collectively referred to as the "Excise Tax") then), in addition then the Company shall pay to any other benefits to which you are entitled under this Agreement, you will be entitled to receive the Executive an additional payment (a "Gross-Up Payment") in cash, in an amount such that after you pay payment by the Executive of all taxes including, without limitation, (i) any income taxes (and any interest and penalties imposed with respect thereto) and (ii) including any Excise Tax, ) imposed upon the Gross-Up Payment, you will retain the Executive retains an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments. Unless you Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income and the Company otherwise agree highest applicable marginal rate of federal income taxation for the calendar year in writing, any determination required under this Section 4, including without limitation, which the amount of payments under this Article 6 (the "Parachute Gross-up") shall Up Payment is to be computed and made in writing by the Employer's then independent public accountants (the "Accountants"), whose determination shall be, subject to the Employee's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposesmade. For purposes of making determining the calculations required by this Section 4amount of the Gross-Up Payment, the Accountants may rely on reasonableExecutive shall be deemed to (A) pay federal income taxes at the highest marginal rates of federal income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, good faith interpretations concerning (B) pay applicable state and local income taxes at the application highest marginal rate of Section 280G and 4999 taxation for the calendar year in which the Gross-Up Payment is to be made, net of the Code. You maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (C) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the Company shall furnish to inclusion of the Accountants such information and documents as Gross-Up Payment in the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4Executive's adjusted gross income.

Additional Payments. (a) If all, Notwithstanding anything in this Agreement or any portionother agreement to the contrary, in the event it is determined that any payments or distributions (including, without limitation, the vesting of an option or other non-cash benefit or property or the forgiveness of any indebtedness) by the Corporation or any affiliate (as defined under the Securities Act of 1933, as amended, and the regulations thereunder) thereof or any other person to or for the benefit of the payments Employee, whether paid or other benefits provided under any section payable pursuant to the terms of this Agreement, either alone or together pursuant to any other agreement or arrangement with other payments and benefits that you receive the Corporation or are entitled any such affiliate (“Payments”), would be subject to receive from the Company or its affiliates, (whether or not under an existing plan, arrangement or other agreement) (collectively the "Payments") would constitute an excess "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under imposed by Section 4999 of the Code, or any successor provision, or any interest or penalties with respect to the excise tax (such the excise tax, together with any interest and penalties related theretopenalties, are hereinafter collectively referred to as the "“Excise Tax") then”), in addition to any other benefits to which you are entitled under this Agreement, you then the Employee will be entitled to receive an additional payment from the Corporation (a "“Gross-Up Payment"”) in cash, in an amount such that after you pay payment by the Employee of all taxes (including, without limitation, (i) any income taxes (and any interest and or penalties imposed with respect thereto) to such taxes and (ii) any Excise Tax, ) imposed upon the Gross-Up Payment, you will retain the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the The amount of payments under this Article 6 (the "Parachute Gross-up") shall Up Payment will be computed and made in writing calculated by the Employer's then Corporation’s independent public accountants (the "Accountants")accounting firm, whose determination shall be, subject engaged immediately prior to the Employee's reasonable approval of event that triggered the calculations required under this Article 6payment, conclusive and binding upon in consultation with the Employee and the Employer for all purposesCorporation’s outside legal counsel. For purposes of making the calculations required by this Section 4Section, the Accountants accounting firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code, provided that the accounting firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). You and The Gross-Up Payment will be paid on the Company shall furnish Employee’s last day of employment or on the occurrence of the event that results in the imposition of the Excise Tax, if later. If the precise amount of the Gross-Up Payment cannot be determined on the date it is to be paid, an amount equal to the Accountants such information and documents best estimate of the Gross-Up Payment will be made on that date and, within 10 days after the precise calculation is obtained, either the Corporation will pay any additional amount to the Employee or the Employee will pay any excess amount to the Corporation, as the Accountants case may be. If subsequently the Internal Revenue Service (the “IRS”) claims that any additional Excise Tax is owing, an additional Gross-Up Payment will be paid to the Employee within 30 days of the Employee providing substantiation of the claim made by the IRS. After payment to the Employee of the Gross-Up Payment, the Employee will provide to the Corporation any information reasonably request requested by the Corporation relating to the Excise Tax, the Employee will take those actions as the Corporation reasonably requests to contest the Excise Tax, cooperate in order good faith with the Corporation to make a determination under this Section 4effectively contest the Excise Tax and permit the Corporation to participate in any proceedings contesting the Excise Tax. The Company shall Corporation will bear and pay directly all costs and expenses (including any interest or penalties on the Accountants may reasonably incur in connection with Excise Tax), and indemnify and hold the Employee harmless, on an after-tax basis, from all such costs and expenses related to such contest. Should it ultimately be determined that any calculations contemplated by this Section 4amount of an Excise Tax is not properly owed, the Employee will refund to the Corporation the related amount of the Gross-Up Payment.

Additional Payments. (a) If allNotwithstanding anything in this Agreement, the 2000 Equity Award Plan, or any portionother agreement or plan to the contrary, in the event it is determined that any payments or distributions by the Corporation or any affiliate (as defined under the Securities Act of 1933, as amended, and the regulations thereunder) thereof or any other person to or for the benefit of the payments Executive, whether paid or other benefits provided under any section payable pursuant to the terms of this Agreement, either alone or together pursuant to any other agreement or arrangement with other payments and benefits that you receive the Corporation or are entitled to receive from the Company or its affiliates, any such affiliate (whether or not under an existing plan, arrangement or other agreement) (collectively the "Payments") ), would constitute an excess "parachute payment" within be subject to the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under imposed by Section 4999 of the Code, or any successor provision, or any interest or penalties with respect to the excise tax (such the excise tax, together with any interest and penalties related theretopenalties, are hereinafter collectively referred to as the "Excise Tax") then), in addition to any other benefits to which you are entitled under this Agreement, you then the Executive will be entitled to receive an additional payment from the Corporation (a "Gross-Up Payment") in cash, in an amount such that after you pay payment by the Executive of all taxes (including, without limitation, (i) any income taxes (and any interest and or penalties imposed with respect thereto) to such taxes and (ii) any Excise Tax, ) imposed upon the Gross-Up Payment, you will retain the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the The amount of payments under this Article 6 (the "Parachute Gross-up") shall Up Payment will be computed and made in writing calculated by the EmployerCorporation's then independent public accountants (the "Accountants")accounting firm, whose determination shall be, subject engaged immediately prior to the Employeeevent that triggered the payment, in consultation with the Corporation's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposesoutside legal counsel. For purposes of making the calculations required by this Section 4Section, the Accountants accounting firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code, provided that the accounting firm's determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). You and The Gross-Up Payment will be paid on the Company shall furnish Executive's last day of employment or on the occurrence of the event that results in the imposition of the Excise Tax, if later. If the precise amount of the Gross-Up Payment cannot be determined on the date it is to be paid, an amount equal to the Accountants such information and documents best estimate of the Gross-Up Payment will be made on that date and, within 10 days after the precise calculation is obtained, either the Corporation will pay any additional amount to the Executive or the Executive will pay any excess amount to the Corporation, as the Accountants case may be. If subsequently the Internal Revenue Service (the "IRS") claims that any additional Excise Tax is owing, an additional Gross-Up Payment will be paid to the Executive within 30 days of the Executive providing substantiation of the claim made by the IRS. After payment to the Executive of the Gross-Up Payment, the Executive will provide to the Corporation any information reasonably request requested by the Corporation relating to the Excise Tax, the Executive will take those actions as the Corporation reasonable requests to contest the Excise Tax, cooperate in order good faith with the Corporation to make a determination under this Section 4effectively contest the Excise Tax and permit the Corporation to participate in any proceedings contesting the Excise Tax. The Company shall Corporation will bear and pay directly all costs and expenses (including any interest or penalties on the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4.Excise Tax), and indemnify and hold the Executive harmless, on an after-tax basis, from all such costs and expenses related to such

Additional Payments. (a) If allAnything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any payment or any portion, distribution by the Company to or for the benefit of the payments Employee (whether paid or other benefits provided under any section payable or distributed or distributable pursuant to the terms of this AgreementAgreement or otherwise, either alone or together with other but determined without regard to any additional payments and benefits that you receive or are entitled to receive from the Company or its affiliates, (whether or not required under an existing plan, arrangement or other agreementthis Section 12) (collectively the a "PaymentsPayment") would constitute an excess "parachute payment" within be subject to the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under imposed by Section 4999 of the Code, Code or any interest or penalties are incurred by the Employee with respect to such excise tax (such excise tax, together with any such interest and penalties related theretopenalties, are hereinafter collectively referred to as the "Excise Tax") then), in addition to any other benefits to which you are entitled under this Agreement, you will then the Employee shall be entitled to receive an additional payment (a "Gross-Up Payment") in cash, in an amount such that after you pay payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, (i) any income taxes (and any interest and penalties imposed with respect thereto) and (ii) any Excise Tax, Tax imposed upon the Gross-Up Payment, you will retain the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and Notwithstanding the Company otherwise agree in writing, any determination required under foregoing provisions of this Section 412.1, including without limitationif it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Payments do not exceed 110% of the greatest amount of payments under this Article 6 (the "Parachute Reduced Amount") that could be paid to the Employee such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-up") Up Payment shall be computed and made in writing by the Employer's then independent public accountants (the "Accountants"), whose determination shall be, subject to the Employee's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposes. For purposes of making Payments, in the calculations required by this Section 4aggregate, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You and the Company shall furnish be reduced to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4Reduced Amount.

Additional Payments. (aIn the event that Xxxxxxx becomes entitled to payments under paragraph 5(a) If all, or any portion, of the payments or other benefits provided under any section 5(b) of this Agreement, either alone or together with other payments and benefits that you receive or are entitled to receive from the Company or shall cause its affiliatesindependent auditors promptly to review, (whether or not under an existing planat the Company's sole expense, arrangement or other agreement) (collectively the "Payments") would constitute an excess "parachute payment" within the meaning applicability of Section 280G 4999 of the Internal Revenue Code to such payments. If such auditors shall determine that any payment or distribution of 1986any type by the Company to Xxxxxxx or for his benefit, as amended whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "CodeTotal Payments") and ), would result in be subject to the imposition on you of an excise tax under imposed by Section 4999 of the Code, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties related theretopenalties, are hereinafter collectively referred to as the "Excise Tax") then), in addition to any other benefits to which you are entitled under this Agreement, you will then Xxxxxxx shall be entitled to receive an additional cash payment (a "Gross-Up Payment") in cash, in within 30 days of such determination equal to an amount such that after you pay payment by Xxxxxxx of all taxes including, without limitation, (i) any income taxes (and including any interest and or penalties imposed with respect thereto) and (ii) to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, you will Xxxxxxx would retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. Unless you and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the amount of payments under this Article 6 (the "Parachute Gross-up") shall be computed and made in writing by the Employer's then independent public accountants (the "Accountants"), whose determination shall be, subject to the Employee's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposes. For purposes of making the calculations foregoing determination, Xxxxxxx'x tax rate shall be deemed to be the highest statutory marginal state and Federal tax rate (on a combined basis) (including Xxxxxxx'x share of F.I.C.A. and Medicare taxes) then in effect. If no determination by the Company's auditors is made prior to the time a tax return reflecting the Total Payments is required to be filed by Xxxxxxx, he will be entitled to receive a Gross-Up Payment calculated on the basis of the Total Payments reported by Xxxxxxx in such tax return, within 30 days of the filing of such tax return. In all events, if any tax authority determines that a greater Excise Tax should be imposed upon the Total Payments than is determined by the Company's independent auditors or reflected in Xxxxxxx'x tax return pursuant to this Section 46, Xxxxxxx shall be entitled to receive the Accountants may rely full Gross-Up Payment calculated on reasonable, good faith interpretations concerning the application of Section 280G and 4999 basis of the Code. You and amount of Excise Tax determined to be payable by such tax authority from the Company shall furnish to the Accountants within 30 days of such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4determination.

Additional Payments. (a) If allAnything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any payment or any portion, distribution by the Company to or for the benefit of the payments Employee (whether paid or other benefits provided under any section payable or distributed or distributable pursuant to the terms of this AgreementAgreement or otherwise, either alone or together with other but determined without regard to any additional payments and benefits that you receive or are entitled to receive from the Company or its affiliates, (whether or not required under an existing plan, arrangement or other agreementthis Section 12) (collectively the a "PaymentsPayment") would constitute an excess "parachute payment" within be subject to the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under imposed by Section 4999 of the Code, Code or any interest or penalties are incurred by the Employee with respect to such excise tax (such excise tax, together with any such interest and penalties related theretopenalties, are hereinafter collectively referred to as the "Excise Tax") then), in addition to any other benefits to which you are entitled under this Agreement, you will then the Employee shall be entitled to receive an additional payment (a "Gross-Up Payment") in cash, in an amount such that after you pay payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, (i) any income taxes (and any interest and penalties imposed with respect thereto) and (ii) any Excise Tax, Tax imposed upon the Gross-Up Payment, you will retain the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and Notwithstanding the Company otherwise agree in writing, any determination required under foregoing provisions of this Section 412.1, including without limitationif it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Payments do not exceed 110% of the greatest amount of payments under this Article 6 (the "Parachute Reduced Amount") that could be paid to the Employee such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-up") Up Payment shall be computed and made in writing by the Employer's then independent public accountants (the "Accountants"), whose determination shall be, subject to the Employee's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposes. For purposes of making Payments, in the calculations required by this Section 4aggregate, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You and the Company shall furnish be reduced to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4.the

Additional Payments. First Commerce shall include in the Proxy Statement a separate item that submits to a shareholder vote the right of any “disqualified individual” (aas defined in Section 280G(c) If all, or any portion, of the Internal Revenue Code) to receive certain payments that could be deemed “parachute payments” under Section 280G(b) of the Internal Revenue Code, in a manner that satisfies the shareholder approval requirements for the exemption of Section 280G(b)(5)(A)(ii) of the Internal Revenue Code and any regulations (including proposed regulations) promulgated thereunder. Such vote shall establish the “disqualified individual’s” right to such payments that would otherwise cause the total change in control payments or other benefits provided under any section payable to such individual to exceed 2.99 times such individual’s “base amount” (as defined in Section 280G(b)(3) and (d)) (the “Contingent Payments”). In addition, prior to such shareholder vote, First Commerce shall (i) provide adequate and appropriate disclosure to all shareholders of this Agreement, either alone or together with other payments and benefits that you receive or are First Commerce entitled to receive from the Company or its affiliatesvote of all material facts concerning all payments that, (whether or not but for such vote, could be deemed “parachute payments” to a “disqualified individual” under an existing plan, arrangement or other agreement) (collectively the "Payments") would constitute an excess "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"in a manner that satisfies Section 280G(b)(5) and would result in the imposition on you of an excise tax under Section 4999 of the Internal Revenue Code, (such excise tax, together with any interest and penalties related thereto, are hereinafter collectively referred to as the "Excise Tax") then, in addition to any other benefits to which you are entitled under this Agreement, you will be entitled to receive an additional payment (a "Gross-Up Payment") in cash, in an amount such that after you pay all taxes including, without limitation, (i) any income taxes (and any interest and penalties imposed with respect thereto) and (ii) any Excise Tax, imposed upon the Gross-Up Payment, you will retain an amount of the Gross-Up Payment equal obtain from each “disqualified individual” who is entitled to the Excise Tax imposed upon the Payments. Unless you and the Company otherwise agree in writing, any determination required receive payments that could be deemed “parachute payments” under this Section 4, including without limitation, the amount of payments under this Article 6 (the "Parachute Gross-up") shall be computed and made in writing by the Employer's then independent public accountants (the "Accountants"), whose determination shall be, subject to the Employee's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposes. For purposes of making the calculations required by this Section 4, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You and the Company shall furnish Internal Revenue Code a written waiver of his or her rights to the Accountants Contingent Payments in the event of a failure to approve such payments by greater than 75% of the First Commerce shares entitled to vote. Furthermore, First Commerce shall take all proper and necessary corporate action to obtain the requisite shareholder vote and provide the necessary disclosures to First Commerce shareholders. First Commerce agrees to cooperate with SBKC and to provide SBKC with the opportunity to review and comment on any applicable information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4statement, proxy materials, resolution, consent action, or other shareholder communication.

Additional Payments. In connection with any assignment of rights and(vi) obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (a) If allwhich may be outright payment, purchases by the assignee of participations or subparticipations, or any portionother compensating actions, including funding, with the consent of the payments Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the 124 130164155_5 142964982_4 applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the Issuing Bank, the Swingline Lender and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swingline Loans in accordance with its Revolving Commitment Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment Agreement, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment Agreement, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment Agreement, be released from its obligations under this Agreement (and, in the case of an Assignment Agreement covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.1, 3.2, 3.3 and 11.2 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or other benefits provided release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. The Borrower will execute and deliver on request, at its own expense, Notes to the assignee evidencing the interests taken by way of assignment hereunder. Any assignment or transfer by a Lender of rights or obligations under any section this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section. Register. The Administrative Agent, acting solely for this purpose as an agent of the(c) Borrower, shall maintain at one of its offices in the United States, a copy of each Assignment Agreement delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans and Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender, either alone or together with other payments at any reasonable time and benefits from time to time upon reasonable prior notice. This Section shall be construed such that you receive or the Loans are entitled to receive from the Company or its affiliates, (whether or not under an existing plan, arrangement or other agreement) (collectively the "Payments") would constitute an excess "parachute payment" at all times maintained in registered form within the meaning meanings of Section 280G Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code of 1986Code. Participations. Any Lender may at any time, as amended without the consent of, or notice to, the(d) Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person, a Defaulting Lender or the "Code") and would result in the imposition on you of an excise tax under Section 4999 Borrower or any of the CodeBorrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitments and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such excise taxLender shall remain solely responsible to the other parties hereto for the performance of such obligations, together and (iii) the Borrower, the Administrative Agent, the Issuing Bank and the Lenders shall continue to deal solely and directly with any interest such Lender in connection with such Lender’s rights and penalties related thereto, are hereinafter collectively referred to as the "Excise Tax") then, in addition to any other benefits to which you are entitled obligations under this Agreement, you will be entitled to receive an additional payment (a "Gross-Up Payment") in cash, in an amount such that after you pay all taxes including, without limitation, (i) any income taxes (and any interest and penalties imposed with respect thereto) and (ii) any Excise Tax, imposed upon the Gross-Up Payment, you will retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the amount of payments under this Article 6 (the "Parachute Gross-up") shall be computed and made in writing by the Employer's then independent public accountants (the "Accountants"), whose determination shall be, subject to the Employee's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposes. For purposes of making the calculations required by this Section 4, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4.125 130164155_5 142964982_4

Additional Payments. (a) If all, In the event that any payment or any portion, of the payments or other benefits provided under any section of this Agreement, either alone or together with other payments and benefits that you receive or are entitled to receive from the Company or its affiliates, benefit (whether or not under an existing plan, arrangement or other agreement) (collectively the "Payments") would constitute an excess "parachute payment" within the meaning of Section 280G 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Code") and )), to Executive or for his benefit paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, his employment with PEI and/or PGE (a "Payment" or "Payments"), would result in be subject to the imposition on you of an excise tax under imposed by Section 4999 of the Code, Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties related theretopenalties, are hereinafter collectively referred to as the "Excise Tax") then), in addition to any other benefits to which you are entitled under this Agreement, you then Executive will be entitled to receive an additional payment (a "Gross-Up Payment") in cash, in an amount such that after you pay payment by Executive of all taxes including(including any interest or penalties, without limitation, (i) any income taxes (and any other than interest and penalties imposed by reason of Executive's failure to file timely a tax return or pay taxes shown due on his return), imposed with respect thereto) to such Gross-Up Payment and (ii) any the Excise Tax, including any Excise Tax imposed upon the Gross-Up Payment, you will retain Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the Company otherwise agree amount of such Gross-Up Payment shall be made at PEI's and/or PGE's expense by an accounting firm selected by PEI and PGE and reasonably acceptable to Executive which is designated as one of the five largest accounting firms in writingthe United States (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to PEI and/or PGE and Executive within five days of the date on which Executive's employment with PEI and/or PGE is terminated if applicable, or such other time as requested by PEI and/or PGE or by Executive (provided Executive reasonably believes that any determination required under of the Payments may be subject to the Excise Tax) and if the Accounting Firm determines that no Excise Tax is payable by Executive with respect to a Payment or Payments, it shall furnish Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to any such Payment or Payments. Within ten days of the delivery of the Determination to Executive, Executive shall have the right to dispute the Determination (the "Dispute"). The Gross-Up Payment, if any, as determined pursuant to this Section 411(b) shall be paid by PEI and/or PGE collectively to Executive within five days of the receipt of the Determination. The existence of the Dispute shall not in any way affect Executive's right to receive the Gross-Up Payment in accordance with the Determination. If there is no Dispute, including without limitationthe Determination shall be binding, final and conclusive upon PEI and/or PGE and Executive subject to the application of Section 11(c) below. (c) As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that a Gross-Up Payment (or a portion thereof) will be paid which should not have been paid (an "Excess Payment") or a Gross-Up Payment (or a portion thereof) which should have been paid will not have been paid (an "Underpayment"). An Underpayment shall be deemed to have occurred (i) upon notice (formal or informal) to Executive from any governmental taxing authority that Executive's tax liability (whether in respect of Executive's current taxable year or in respect of any prior taxable year) may be increased by reason of the imposition of the Excise Tax on a Payment or Payments with respect to which PEI and/or PGE has failed to make a sufficient Gross-Up Payment, (ii) upon a determination by a court, (iii) by reason of determination by PEI and/or PGE (which shall include the position taken by PEI and/or PGE, together with its consolidated group, on its federal income tax return) or (iv) upon the resolution of the Dispute to Executive's satisfaction. If an Underpayment occurs, Executive shall promptly notify PEI and/or PGE and PEI and/or PGE shall promptly, but in any event, at least five days prior to the date on which the applicable government taxing authority has requested payment, pay to Executive an additional Gross-Up Payment equal to the amount of the Underpayment plus any interest and penalties (other than interest and penalties imposed by reason of Executive's failure to file timely a tax return or pay taxes shown due on Executive's return) imposed on the Underpayment. An Excess Payment shall be deemed to have occurred upon a Final Determination (as hereinafter defined) that the Excise Tax shall not be imposed upon a Payment or Payments (or portion thereof) with respect to which Executive had previously received a Gross-Up Payment. A "Final Determination" shall be deemed to have occurred when Executive has received from the applicable government taxing authority a refund of taxes or other reduction in Executive's tax liability by reason of the Excise Payment and upon either (x) the date a determination is made by, or an agreement is entered into with, the applicable governmental taxing authority which finally and conclusively binds Executive and such taxing authority, or in the event that a claim is brought before a court of competent jurisdiction, the date upon which a final determination has been made by such court and either all appeals have been taken and finally resolved or the time for all appeals has expired or (y) the statute of limitations with respect to Executive's applicable tax return has expired. If an Excess Payment is determined to have been made, the amount of payments under this Article 6 the Excess Payment shall be treated as a loan by PEI and/or PGE to Executive and Executive shall pay to PEI and/or PGE on demand (but not less than 10 days after the "Parachute determination of such Excess Payment and written notice has been delivered to Executive) the amount of the Excess Payment plus interest at an annual rate equal to the Applicable Federal Rate provided for in Section 1274(d) of the Code from the date the Gross-up"Up Payment (to which the Excess Payment relates) shall be computed and made was paid to Executive until the date of repayment to PEI and/or PGE. (d) Notwithstanding anything contained in writing by the Employer's then independent public accountants (the "Accountants"), whose determination shall be, subject this Agreement to the Employee's reasonable approval contrary, in the event that, according to the Determination, an Excise Tax will be imposed on any Payment or Payments, PEI and/or PGE collectively shall pay to the applicable government taxing authorities as Excise Tax withholding, the amount of the calculations required under this Article 6, conclusive and binding upon Excise Tax that PEI and/or PGE has actually withheld from the Employee and the Employer for all purposesPayment or Payments. For purposes of making the calculations required by this Section 4, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 412.

Additional Payments. (a) If all, Notwithstanding anything in this Agreement or any portionother agreement to the contrary, in the event it is determined that any payments or distributions (including, without limitation, the vesting of an option or other non-cash benefit or property or the forgiveness of any indebtedness) by the Company or any affiliate (as defined under the Securities Act of 1933, as amended, and the regulations thereunder) thereof or any other person to or for the benefit of the payments Executive, whether paid or other benefits provided under any section payable pursuant to the terms of this Agreement, either alone or together pursuant to any other agreement or arrangement with other payments and benefits that you receive or are entitled to receive from the Company or its affiliatesany such affiliate (“Payments”), (whether or not under an existing plan, arrangement or other agreement) (collectively would be subject to the "Payments") would constitute an excess "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under imposed by Section 4999 of the Code, or any successor provision, or any interest or penalties with respect to the excise tax (such the excise tax, together with any interest and penalties related theretopenalties, are hereinafter collectively referred to as the "“Excise Tax") then”), in addition to any other benefits to which you are entitled under this Agreement, you then the Executive will be entitled to receive an additional payment from the Company (a "“Gross-Up Payment"”) in cash, in an amount such that after you pay payment by the Executive of all taxes (including, without limitation, (i) any income taxes (and any interest and or penalties imposed with respect thereto) to such taxes and (ii) any Excise Tax, ) imposed upon the Gross-Up Payment, you will retain the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the The amount of payments under this Article 6 (the "Parachute Gross-up") shall Up Payment will be computed and made in writing calculated by the Employer's then Company’s independent public accountants (the "Accountants")accounting firm, whose determination shall be, subject engaged immediately prior to the Employee's reasonable approval of event that triggered the calculations required under this Article 6payment, conclusive and binding upon in consultation with the Employee and the Employer for all purposesCompany’s outside legal counsel. For purposes of making the calculations required by this Section 4Section, the Accountants accounting firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code, provided that the accounting firm’s determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). You and The Gross-Up Payment will be paid on the Executive’s last day of employment or on the occurrence of the event that results in the imposition of the Excise Tax, if later. If the precise amount of the Gross-Up Payment cannot be determined on the date it is to be paid, an amount equal to the best estimate of the Gross-Up Payment will be made on that date and, within 10 days after the precise calculation is obtained, either the Corporation will pay any additional amount to the Executive or the Executive will pay any excess amount to the Company, as the case may be. If subsequently the Internal Revenue Service (the “IRS”) claims that any additional Excise Tax is owing, an additional Gross-Up Payment will be paid to the Executive within 30 days of the Executive providing substantiation of the claim made by the IRS. After payment to the Executive of the Gross-Up Payment, the Executive will provide to the Company shall furnish any information reasonably requested by the Company relating to the Accountants such information and documents Excise Tax, the Executive will take those actions as the Accountants may Company reasonably request requests to contest the Excise Tax, cooperate in order good faith with the Company to make a determination under this Section 4effectively contest the Excise Tax and permit the Company to participate in any proceedings contesting the Excise Tax. The Company shall will bear and pay directly all costs and expenses (including any interest or penalties on the Accountants may reasonably incur in connection with Excise Tax), and indemnify and hold the Executive harmless, on an after-tax basis, from all such costs and expenses related to such contest. Should it ultimately be determined that any calculations contemplated by this Section 4amount of an Excise Tax is not properly owed, the Executive will refund to the Company the related amount of the Gross-Up Payment.

Additional Payments. (a) If all, Notwithstanding anything in this Agreement or any portionother agreement to the contrary, in the event it is determined that any payments or distributions (including, without limitation, the vesting of an option or other non-cash benefit or property or the forgiveness of any indebtedness) by the Corporation or any affiliate (as defined under the Securities Act of 1933, as amended, and the regulations thereunder) thereof or any other person to or for the benefit of the payments Executive, whether paid or other benefits provided under any section payable pursuant to the terms of this Agreement, either alone or together pursuant to any other agreement or arrangement with other payments and benefits that you receive the Corporation or are entitled to receive from the Company or its affiliates, any such affiliate (whether or not under an existing plan, arrangement or other agreement) (collectively the "Payments") ), would constitute an excess "parachute payment" within be subject to the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under imposed by Section 4999 of the Code, or any successor provision, or any interest or penalties with respect to the excise tax (such the excise tax, together with any interest and penalties related theretopenalties, are hereinafter collectively referred to as the "Excise Tax") then), in addition to any other benefits to which you are entitled under this Agreement, you then the Executive will be entitled to receive an additional payment from the Corporation (a "Gross-Up Payment") in cash, in an amount such that after you pay payment by the Executive of all taxes (including, without limitation, (i) any income taxes (and any interest and or penalties imposed with respect thereto) to such taxes and (ii) any Excise Tax, ) imposed upon the Gross-Up Payment, you will retain the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the The amount of payments under this Article 6 (the "Parachute Gross-up") shall Up Payment will be computed and made in writing calculated by the EmployerCorporation's then independent public accountants (the "Accountants")accounting firm, whose determination shall be, subject engaged immediately prior to the Employeeevent that triggered the payment, in consultation with the Corporation's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposesoutside legal counsel. For purposes of making the calculations required by this Section 4Section, the Accountants accounting firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code, provided that the accounting firm's determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). You and The Gross-Up Payment will be paid on the Company shall furnish Executive's last day of employment or on the occurrence of the event that results in the imposition of the Excise Tax, if later. If the precise amount of the Gross-Up Payment cannot be determined on the date it is to be paid, an amount equal to the Accountants such information and documents best estimate of the Gross-Up Payment will be made on that date and, within 10 days after the precise calculation is obtained, either the Corporation will pay any additional amount to the Executive or the Executive will pay any excess amount to the Corporation, as the Accountants case may be. If subsequently the Internal Revenue Service (the "IRS") claims that any additional Excise Tax is owing, an additional Gross-Up Payment will be paid to the Executive within 30 days of the Executive providing substantiation of the claim made by the IRS. After payment to the Executive of the Gross-Up Payment, the Executive will provide to the Corporation any information reasonably request requested by the Corporation relating to the Excise Tax, the Executive will take those actions as the Corporation reasonable requests to contest the Excise Tax, cooperate in order good faith with the Corporation to make a determination under this Section 4effectively contest the Excise Tax and permit the Corporation to participate in any proceedings contesting the Excise Tax. The Company shall Corporation will bear and pay directly all costs and expenses (including any interest or penalties on the Accountants may reasonably incur in connection with Excise Tax), and indemnify and hold the Executive harmless, on an after-tax basis, from all such costs and expenses related to such contest. Should it ultimately be determined that any calculations contemplated by this Section 4amount of an Excise Tax is not properly owed, the Executive will refund to the Corporation the related amount of the Gross-Up Payment.

Additional Payments. (a) If all, Notwithstanding anything in this Agreement or any portionother agreement to the contrary, in the event it is determined that any payments or distributions by the Corporation or any affiliate (as defined under the Securities Act of 1933, as amended, and the regulations thereunder) thereof or any other person to or for the benefit of the payments Executive, whether paid or other benefits provided under any section payable pursuant to the terms of this Agreement, either alone or together pursuant to any other agreement or arrangement with other payments and benefits that you receive the Corporation or are entitled to receive from the Company or its affiliates, any such affiliate (whether or not under an existing plan, arrangement or other agreement) (collectively the "Payments") ), would constitute an excess "parachute payment" within be subject to the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under imposed by Section 4999 of the Code, or any successor provision, or any interest or penalties with respect to the excise tax (such the excise tax, together with any interest and penalties related theretopenalties, are hereinafter collectively referred to as the "Excise Tax") then), in addition to any other benefits to which you are entitled under this Agreement, you then the Executive will be entitled to receive an additional payment from the Corporation (a "Gross-Up Payment") in cash, in an amount such that after you pay payment by the Executive of all taxes (including, without limitation, (i) any income taxes (and any interest and or penalties imposed with respect thereto) to such taxes and (ii) any Excise Tax, ) imposed upon the Gross-Up Payment, you will retain the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the The amount of payments under this Article 6 (the "Parachute Gross-up") shall Up Payment will be computed and made in writing calculated by the EmployerCorporation's then independent public accountants (the "Accountants")accounting firm, whose determination shall be, subject engaged immediately prior to the Employeeevent that triggered the payment, in consultation with the Corporation's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposesoutside legal counsel. For purposes of making the calculations required by this Section 4Section, the Accountants accounting firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code, provided that the accounting firm's determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). You and The Gross-Up Payment will be paid on the Company shall furnish Executive's last day of employment or on the occurrence of the event that results in the imposition of the Excise Tax, if later. If the precise amount of the Gross-Up Payment cannot be determined on the date it is to be paid, an amount equal to the Accountants such information and documents best estimate of the Gross-Up Payment will be made on that date and, within 10 days after the precise calculation is obtained, either the Corporation will pay any additional amount to the Executive or the Executive will pay any excess amount to the Corporation, as the Accountants case may be. If subsequently the Internal Revenue Service (the "IRS") claims that any additional Excise Tax is owing, an additional Gross-Up Payment will be paid to the Executive within 30 days of the Executive providing substantiation of the claim made by the IRS. After payment to the Executive of the Gross-Up Payment, the Executive will provide to the Corporation any information reasonably request requested by the Corporation relating to the Excise Tax, the Executive will take those actions as the Corporation reasonably requests to contest the Excise Tax, cooperate in order good faith with the Corporation to make a determination under this Section 4effectively contest the Excise Tax and permit the Corporation to participate in any proceedings contesting the Excise Tax. The Company shall Corporation will bear and pay directly all costs and expenses (including any interest or penalties on the Accountants may reasonably incur in connection with Excise Tax), and indemnify and hold the Executive harmless, on an after-tax basis, from all such costs and expenses related to such contest. Should it ultimately be determined that any calculations contemplated by this Section 4amount of an Excise Tax is not properly owed, the Executive will refund to the Corporation the related amount of the Gross-Up Payment.

Additional Payments. Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of Employee (a) If all, whether paid or any portion, of payable or distributed or distributable pursuant to the payments or other benefits provided under any section terms of this AgreementAgreement or otherwise, either alone or together with other but determined without regard to any additional payments and benefits that you receive or are entitled to receive from the Company or its affiliates, (whether or not required under an existing plan, arrangement or other agreementthis Section 11) (collectively the a "PaymentsPayment") would constitute an excess "parachute payment" within be subject to the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under imposed by Section 4999 of the Code, Code or any interest or penalties are incurred by Employee with respect to such excise tax (such excise tax, together with any such interest and penalties related theretopenalties, are hereinafter collectively referred to as the "Excise Tax") then), in addition to any other benefits to which you are entitled under this Agreement, you will then Employee shall be entitled to receive an additional payment (a "Gross-Up Payment") in cash, in an amount such that after you pay payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, (i) any income taxes (and any interest and penalties imposed with respect thereto) and (ii) any Excise Tax, Tax imposed upon the Gross-Up Payment, you will retain Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and Notwithstanding the Company otherwise agree in writing, any determination required under foregoing provisions of this Section 411.1, including without limitationif it shall be determined that Employee is entitled to a Gross-Up Payment, but that the Payments do not exceed 110% of the greatest amount of payments under this Article 6 (the "Parachute Reduced Amount") that could be paid to Employee such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-up") Up Payment shall be computed and made in writing by the Employer's then independent public accountants (the "Accountants"), whose determination shall be, subject to the Employee's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposes. For purposes of making Payments, in the calculations required by this Section 4aggregate, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You and the Company shall furnish be reduced to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4Reduced Amount.

Additional Payments. (a) If allNotwithstanding anything in this Agreement, the 2000 Equity Award Plan, or any portionother agreement or plan to the contrary, in the event it is determined that any payments or distributions by the Corporation or any affiliate (as defined under the Securities Act of 1933, as amended, and the regulations thereunder) thereof or any other person to or for the benefit of the payments Executive, whether paid or other benefits provided under any section payable pursuant to the terms of this Agreement, either alone or together pursuant to any other agreement or arrangement with other payments and benefits that you receive the Corporation or are entitled to receive from the Company or its affiliates, any such affiliate (whether or not under an existing plan, arrangement or other agreement) (collectively the "Payments") ), would constitute an excess "parachute payment" within be subject to the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under imposed by Section 4999 of the Code, or any successor provision, or any interest or penalties with respect to the excise tax (such the excise tax, together with any interest and penalties related theretopenalties, are hereinafter collectively referred to as the "Excise Tax") then), in addition to any other benefits to which you are entitled under this Agreement, you then the Executive will be entitled to receive an additional payment from the Corporation (a "Gross-Up Payment") in cash, in an amount such that after you pay payment by the Executive of all taxes (including, without limitation, (i) any income taxes (and any interest and or penalties imposed with respect thereto) to such taxes and (ii) any Excise Tax, ) imposed upon the Gross-Up Payment, you will retain the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the The amount of payments under this Article 6 (the "Parachute Gross-up") shall Up Payment will be computed and made in writing calculated by the EmployerCorporation's then independent public accountants (the "Accountants")accounting firm, whose determination shall be, subject engaged immediately prior to the Employeeevent that triggered the payment, in consultation with the Corporation's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposesoutside legal counsel. For purposes of making the calculations required by this Section 4Section, the Accountants accounting firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code, provided that the accounting firm's determinations must be made with substantial authority (within the meaning of Section 6662 of the Code). You and The Gross-Up Payment will be paid on the Company shall furnish Executive's last day of employment or on the occurrence of the event that results in the imposition of the Excise Tax, if later. If the precise amount of the Gross-Up Payment cannot be determined on the date it is to be paid, an amount equal to the Accountants such information and documents best estimate of the Gross-Up Payment will be made on that date and, within 10 days after the precise calculation is obtained, either the Corporation will pay any additional amount to the Executive or the Executive will pay any excess amount to the Corporation, as the Accountants case may be. If subsequently the Internal Revenue Service (the "IRS") claims that any additional Excise Tax is owing, an additional Gross-Up Payment will be paid to the Executive within 30 days of the Executive providing substantiation of the claim made by the IRS. After payment to the Executive of the Gross-Up Payment, the Executive will provide to the Corporation any information reasonably request requested by the Corporation relating to the Excise Tax, the Executive will take those actions as the Corporation reasonable requests to contest the Excise Tax, cooperate in order good faith with the Corporation to make a determination under this Section 4effectively contest the Excise Tax and permit the Corporation to participate in any proceedings contesting the Excise Tax. The Company shall Corporation will bear and pay directly all costs and expenses (including any interest or penalties on the Accountants may reasonably incur in connection with Excise Tax), and indemnify and hold the Executive harmless, on an after-tax basis, from all such costs and expenses related to such contest. Should it ultimately be determined that any calculations contemplated by this Section 4amount of an Excise Tax is not properly owed, the Executive will refund to the Corporation the related amount of the Gross-Up Payment.

Additional Payments. Landlord, pursuant to that certain (ai) If allamendment to GSA’s lease dated April 13, or any portion2007 (“SLA 12”) (a copy of which is attached hereto as Exhibit A-1), (ii) amendment to GSA’s lease dated May 7, 2007 (“SLA 13”) (a copy of which is attached hereto as Exhibit A-2) and (iii) amendment to GSA’s lease being executed contemporaneously herewith (the payments or other benefits provided under any section “New SLA” (a copy of this Agreementwhich is attached hereto as Exhibit A-3), either alone or together with other payments SLA 12 and benefits that you receive or are SLA 13, the “SLAs”), is entitled to receive the additional payments listed below in excess of GSA’s current base rent and additional rent obligations (the “Additional Payments”). If and only if Landlord actually receives any such payment, Landlord will deliver such payments to Tenant within five (5) business days of Landlord’s actual receipt of such payment or, in the case of the May 1 and June 1 payments, within five (5) business days of the date hereof. If Landlord actually incurs any out-of-pocket costs attributable to its efforts to collect the Additional Payments below (including without limitation reasonable attorneys’ fees), Landlord may withhold and deduct such collection costs from the Company or its affiliatesAdditional Payments before delivering the Additional Payments to Tenant, (whether or not under an existing planprovided, arrangement however, that in the event such collection efforts seek to recover payment of base rent, additional rent or other agreement) (collectively the "Payments") would constitute an excess "parachute payment" within the meaning payment obligations of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under Section 4999 of the Code, (such excise tax, together with any interest and penalties related thereto, are hereinafter collectively referred to as the "Excise Tax") then, GSA in addition to any other benefits to which you are entitled under this Agreementthe Additional Payments, you the out-of-pocket collection costs deducted by Landlord will be entitled to receive an additional payment (a "Grosspro-Up Payment") in cash, in an amount such that after you pay all taxes including, without limitation, (i) any income taxes (and any interest and penalties imposed with respect thereto) and (ii) any Excise Tax, imposed rated based upon the Gross-Up Payment, you will retain an amount ratio of the Gross-Up Payment equal Additional Payments to the Excise Tax imposed upon total amount sought by Landlord. Landlord shall have no liability for GSA’s failure to timely make any of the Payments. Unless you and the Company otherwise agree Additional Payments set forth herein, Tenant hereby waiving any right it may have against Landlord for such failure by GSA, provided that nothing in writing, any determination required under this Section 4, including without limitation, the amount of payments under this Article 6 (the "Parachute Gross-up") sentence shall be computed construed to release Landlord from Landlord’s obligations to Tenant under the terms of this Amendment. Landlord and made Tenant acknowledge that the payments contemplated on November 1, 2007, and December 1, 2007, are contingent on GSA remaining in writing by the Employer's then independent public accountants (Premises beyond the "Accountants"), whose determination shall be, subject to the Employee's reasonable approval dates specified in Section 5 of the calculations required under this Article 6New SLA, conclusive and binding upon as further set forth in the Employee and New SLA. May 1, 2007 $100,000 June 1, 2007 $150,000 August 1, 2007 $200,000 September 1, 2007 $200,000 October 2, 2007 $750,000 November 1, 2007 $400,000 (only made if GSA has not vacated the Employer for all purposes. For purposes of making Premises by October 2, 2007) December 1, 2007 $500,000 (only made if GSA has not vacated the calculations required Premises by this Section 4November 1, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4.2007)

Additional Payments. (aIn the event that Jxxxxxx becomes entitled to payments under paragraph 5(a) If all, or any portion, of the payments or other benefits provided under any section 5(b) of this Agreement, either alone or together with other payments and benefits that you receive or are entitled to receive from the Company or shall cause its affiliatesindependent auditors promptly to review, (whether or not under an existing planat the Company’s sole expense, arrangement or other agreement) (collectively the "Payments") would constitute an excess "parachute payment" within the meaning applicability of Section 280G 4999 of the Internal Revenue Code to such payments. If such auditors shall determine that any payment or distribution of 1986any type by the Company to Jxxxxxx or for his benefit, as amended whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Code") and “Total Payments”), would result in be subject to the imposition on you of an excise tax under imposed by Section 4999 of the Code, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties related theretopenalties, are hereinafter collectively referred to as the "“Excise Tax") then”), in addition to any other benefits to which you are entitled under this Agreement, you will then Jxxxxxx shall be entitled to receive an additional cash payment (a "“Gross-Up Payment"”) in cash, in within 30 days of such determination equal to an amount such that after you pay payment by Jxxxxxx of all taxes including, without limitation, (i) any income taxes (and including any interest and or penalties imposed with respect thereto) and (ii) to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, you will Jxxxxxx would retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. Unless you and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the amount of payments under this Article 6 (the "Parachute Gross-up") shall be computed and made in writing by the Employer's then independent public accountants (the "Accountants"), whose determination shall be, subject to the Employee's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposes. For purposes of making the calculations foregoing determination, Jxxxxxx’x tax rate shall be deemed to be the highest statutory marginal state and Federal tax rate (on a combined basis) (including Jxxxxxx’x share of F.I.C.A. and Medicare taxes) then in effect. If no determination by the Company’s auditors is made prior to the time a tax return reflecting the Total Payments is required to be filed by Jxxxxxx, he will be entitled to receive a Gross-Up Payment calculated on the basis of the Total Payments reported by Jxxxxxx in such tax return, within 30 days of the filing of such tax return. In all events, if any tax authority determines that a greater Excise Tax should be imposed upon the Total Payments than is determined by the Company’s independent auditors or reflected in Jxxxxxx’x tax return pursuant to this Section 46, Jxxxxxx shall be entitled to receive the Accountants may rely full Gross-Up Payment calculated on reasonable, good faith interpretations concerning the application of Section 280G and 4999 basis of the Code. You and amount of Excise Tax determined to be payable by such tax authority from the Company shall furnish to the Accountants within 30 days of such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4determination.

Additional Payments. (aA) If allGROSS-UP PAYMENT. Anything in this Agreement to the contrary notwithstanding and except as set forth below, if it shall be determined that any amount paid, distributed or any portion, of the payments treated as paid or other benefits provided under any section of this Agreement, either alone or together with other payments and benefits that you receive or are entitled to receive from distributed by the Company or any of its affiliates, affiliates to or for Executive's benefit (whether paid or not payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under an existing plan, arrangement or other agreementthis Section 9) (collectively the a "PaymentsPayment") would constitute an excess "parachute payment" within be subject the meaning of excise tax imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an or any interest or penalties are incurred by Executive with respect to such excise tax under Section 4999 of the Code, (such excise tax, together with any such interest and penalties related theretopenalties, are hereinafter collectively referred to as the "Excise Tax") then), in addition to any other benefits to which you are entitled under this Agreement, you will then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in cash, in an amount such that after you pay payment by Executive of all federal, state and local taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, (i) any income taxes (and any interest and penalties imposed with respect thereto) and (ii) any Excise Tax, Tax imposed upon the Gross-Up Payment, you will retain Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and the Company otherwise agree in writing, any determination All determinations required to be made under this Section 49, including without limitation, whether and when a Gross-Up Payment is required and the amount of payments under this Article 6 such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm as may be designated by Executive (the "Parachute Accounting Firm") which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the change in control, Executive shall 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 by the Company. Any Gross-up") Up Payment, as determined pursuant to this Section 9, shall be computed and made in writing paid by the Employer's then independent public accountants (the "Accountants"), whose determination shall be, subject Company to the Employee's reasonable approval Executive within five days of the calculations required under this Article 6, conclusive and receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Employee Company and Executive. As a result of the Employer for all purposes. For purposes of making the calculations required by this Section 4, the Accountants may rely on reasonable, good faith interpretations concerning uncertainty in the application of Section 280G and 4999 of the Code. You and 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 shall furnish should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the Accountants such information event that the 8 9 Company exhausts its remedies pursuant to Section 9(B) and documents as the Accountants may reasonably request in order Executive thereafter is required to make a determination under this Section 4. The 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 shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4to or for Executive's benefit.

Additional Payments. (a) If all, In the event that any payment or any portion, of the payments or other benefits provided under any section of this Agreement, either alone or together with other payments and benefits that you receive or are entitled to receive from the Company or its affiliates, benefit (whether or not under an existing plan, arrangement or other agreement) (collectively the "Payments") would constitute an excess "parachute payment" within the meaning of Section 280G 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Code") and )), to Executive or for his benefit paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, his employment with PEI and/or PGE (a "Payment" or "Payments"), would result in be subject to the imposition on you of an excise tax under imposed by Section 4999 of the Code, Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties related theretopenalties, are hereinafter collectively referred to as the "Excise Tax") then), in addition to any other benefits to which you are entitled under this Agreement, you then Executive will be entitled to receive an additional payment (a "Gross-Up Payment") in cash, in an amount such that after you pay payment by Executive of all taxes including(including any interest or penalties, without limitation, (i) any income taxes (and any other than interest and penalties imposed by reason of Executive's failure to file timely a tax return or pay taxes shown due on his return), imposed with respect thereto) to such Gross-Up Payment and (ii) any the Excise Tax, including any Excise Tax imposed upon the Gross-Up Payment, you will retain Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the Company otherwise agree amount of such Gross-Up Payment shall be made at PEI's and/or PGE's expense by an accounting firm selected by PEI and PGE and reasonably acceptable to Executive which is designated as one of the five largest accounting firms in writingthe United States (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to PEI and/or PGE and Executive within five days of the date on which Executive's employment with PEI and/or PGE is terminated if applicable, or such other time as requested by PEI and/or PGE or by Executive (provided Executive reasonably believes that any determination required under of the Payments may be subject to the Excise Tax) and if the Accounting Firm determines that no Excise Tax is payable by Executive with respect to a Payment or Payments, it shall furnish Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to any such Payment or Payments. Within ten days of the delivery of the Determination to Executive, Executive shall have the right to dispute the Determination (the "Dispute"). The Gross-Up Payment, if any, as determined pursuant to this Section 411(b) shall be paid by PEI and/or PGE collectively to Executive within five days of the receipt of the Determination. The existence of the Dispute shall not in any way affect Executive's right to receive the Gross-Up Payment in accordance with the Determination. If there is no Dispute, including without limitationthe Determination shall be binding, final and conclusive upon PEI and/or PGE and Executive subject to the application of Section 11(c) below. (c) As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that a Gross-Up Payment (or a portion thereof) will be paid which should not have been paid (an "Excess Payment") or a Gross-Up Payment (or a portion thereof) which should have been paid will not have been paid (an "Underpayment"). An Underpayment shall be deemed to have occurred (i) upon notice (formal or informal) to Executive from any governmental taxing authority that Executive's tax liability (whether in respect of Executive's current taxable year or in respect of any prior taxable year) may be increased by reason of the imposition of the Excise Tax on a Payment or Payments with respect to which PEI and/or PGE has failed to make a sufficient Gross-Up Payment, (ii) upon a determination by a court, (iii) by reason of determination by PEI and/or PGE (which shall include the position taken by PEI and/or PGE, together with their respective consolidated groups, on their respective federal income tax returns) or (iv) upon the resolution of the Dispute to Executive's satisfaction. If an Underpayment occurs, Executive shall promptly notify PEI and/or PGE and PEI and/or PGE shall promptly, but in any event, at least five days prior to the date on which the applicable government taxing authority has requested payment, pay to Executive an additional Gross-Up Payment equal to the amount of the Underpayment plus any interest and penalties (other than interest and penalties imposed by reason of Executive's failure to file timely a tax return or pay taxes shown due on Executive's return) imposed on the Underpayment. An Excess Payment shall be deemed to have occurred upon a Final Determination (as hereinafter defined) that the Excise Tax shall not be imposed upon a Payment or Payments (or portion thereof) with respect to which Executive had previously received a Gross- Up Payment. A "Final Determination" shall be deemed to have occurred when Executive has received from the applicable government taxing authority a refund of taxes or other reduction in Executive's tax liability by reason of the Excise Payment and upon either (x) the date a determination is made by, or an agreement is entered into with, the applicable governmental taxing authority which finally and conclusively binds Executive and such taxing authority, or in the event that a claim is brought before a court of competent jurisdiction, the date upon which a final determination has been made by such court and either all appeals have been taken and finally resolved or the time for all appeals has expired or (y) the statute of limitations with respect to Executive's applicable tax return has expired. If an Excess Payment is determined to have been made, the amount of payments under this Article 6 the Excess Payment shall be treated as a loan by PEI and/or PGE to Executive and Executive shall pay to PEI and/or PGE on demand (but not less than 10 days after the "Parachute determination of such Excess Payment and written notice has been delivered to Executive) the amount of the Excess Payment plus interest at an annual rate equal to the Applicable Federal Rate provided for in Section 1274(d) of the Code from the date the Gross-up"Up Payment (to which the Excess Payment relates) shall be computed and made was paid to Executive until the date of repayment to PEI and/or PGE. (d) Notwithstanding anything contained in writing by the Employer's then independent public accountants (the "Accountants"), whose determination shall be, subject this Agreement to the Employee's reasonable approval contrary, in the event that, according to the Determination, an Excise Tax will be imposed on any Payment or Payments, PEI and/or PGE collectively shall pay to the applicable government taxing authorities as Excise Tax withholding, the amount of the calculations required under this Article 6, conclusive and binding upon Excise Tax that PEI and/or PGE has actually withheld from the Employee and the Employer for all purposesPayment or Payments. For purposes of making the calculations required by this Section 4, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 412.

Additional Payments. A. Tenant shall pay as Additional Payments during the Term hereof, without notice (aexcept as specifically provided) If alland without abatement, deduction or setoff (except as specifically allowed in this Lease), before any fine, penalty, interest, or cost may be added thereto, or become due or be imposed by operation of law for the nonpayment thereof, all sums, impositions, costs, expenses and other payments assessed by a governmental or quasi governmental authority against the Premises and all taxes (including personal property taxes and taxes on rents, leases or occupancy, if any, and government property improvement lease excise tax, assessments, special assessments, enhanced municipal services district assessments, water and sewer rents, rates and charges, excises, levies, licenses, and permit fees, in each case, assessed by a governmental or quasi governmental authority against the Premises), any expenses for which Tenant is required to reimburse Landlord pursuant to the terms of this Lease, including the Administrative Fee provided for herein, and other governmental or quasi-governmental charges, general and special, ordinary and extraordinary, foreseen and unforeseen, of any kind and nature whatsoever that, at any time during the Term hereof may be assessed, levied, confirmed, imposed upon, or grow or become due and payable out of or with respect to, or become a lien on, the Premises and are assessed by a governmental or quasi governmental authority against the Premises or any part thereof, or any portionappurtenances thereto, any use or occupation of the payments Premises, or other benefits provided under such franchises as may be appurtenant to the use of the Premises (all of which are sometimes herein referred to collectively as “Impositions” and individually as “Imposition”) provided, however, that if, by law, any section Imposition may at the option of this Agreement, either alone or together with other payments and benefits that you receive or are entitled to receive from the Company or its affiliates, Tenant be paid in installments (whether or not under an existing planinterest shall accrue on the unpaid balance of such Imposition), arrangement or other agreement) (collectively Tenant may exercise the "Payments") would constitute an excess "parachute payment" within option to pay the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and would result in the imposition on you of an excise tax under Section 4999 of the Code, (such excise tax, together with any interest and penalties related thereto, are hereinafter collectively referred to as the "Excise Tax") then, in addition to any other benefits to which you are entitled under this Agreement, you will be entitled to receive an additional payment (a "Gross-Up Payment") in cash, in an amount such that after you pay all taxes including, without limitation, (i) any income taxes same (and any accrued interest and penalties imposed with respect on the unpaid balance of such Imposition) in installments and, in such event, shall pay such installments during the Term hereof before any fine, penalty, further interest or cost may be added thereto) and (ii) any Excise Tax, imposed upon the Gross-Up Payment, you will retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Unless you and the Company otherwise agree in writing, any determination required under this Section 4, including without limitation, the amount of payments under this Article 6 (the "Parachute Gross-up") shall be computed and made in writing by the Employer's then independent public accountants (the "Accountants"), whose determination shall be, subject to the Employee's reasonable approval of the calculations required under this Article 6, conclusive and binding upon the Employee and the Employer for all purposes. For purposes of making the calculations required by this Section 4, the Accountants may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. You and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 4. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 4.