Common use of Gross-Up Clause in Contracts

Gross-Up. a. In the event it shall be determined that any payment, benefit or distribution (or combination thereof) by the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, or otherwise) (a "Payment") is subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the "Excise Tax"), Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 6(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payment does not exceed 110% of the greatest amount that could be paid to Executive without giving rise to any Excise Tax (the "Safe Harbor Amount"), then no Gross-Up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method of reduction is elected by Executive.

Gross-Up. a. In the event it shall be determined that any payment, benefit or distribution (or combination thereof) by the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, any other plan, arrangement or agreement, including but not limited to the Nonqualified Stock Option Agreement, with the Company or any of its affiliates, or otherwise) (each a "“Payment"” and all such Payments, the “Total Payments”) is subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the "“Excise Tax"”), Executive shall be entitled to receive an additional payment (a "“Gross-Up Payment"”) in an amount such that after payment by Executive of all taxes (including the Excise Tax imposed on the Payments and any interest or penalties imposed with respect to such taxes)income, including, without limitation, any income employment and other taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 6(a11(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payment does Total Payments would not exceed 110be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the greatest portion of the Total Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to any the Excise Tax (the "“Safe Harbor Amount"Cap”), then and no Gross-Up Payment shall be made to Executive and Executive. For purposes of reducing the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are reduced Total Payments to the Safe Harbor Amount. The reduction Cap, any amounts that are not “deferred compensation” within the meaning of Section 409A of the amounts payable hereunder, if applicable, Code shall be made by first reducing the payments under Section 3(a), unless an alternative method of reduction is elected by Executivereduced first.

Gross-Up. a. (a) In the event it shall be determined that any payment, payment or benefit received or distribution (or combination thereof) to be received by the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, Agreement (the “Contract Payments”) or otherwiseotherwise in connection with Executive’s termination of employment or contingent upon a change in ownership or control pursuant to any plan or arrangement or other agreement with the Company (or any affiliate) (a "Payment"“Other Payments” and, together with the Contract Payments, the “Payments”) is would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code Code, as determined as provided below, the Company shall pay to Executive, at the time specified in Section 5(b) below, an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of the Excise Tax on the Payments and any federal, state and local income or other tax and Excise Tax upon the payment provided for by this Section 5(a), and any interest interest, penalties or penalties are incurred additions to tax payable by Executive with respect to such excise tax (such excise taxthereto, together with any such interest and penalties, hereinafter collectively referred to as the "Excise Tax"), Executive shall be entitled equal to receive an additional payment (a "Gross-Up Payment") in an amount the total value of the Payments at the time such that after payment by Executive Payments are to be made. For purposes of all taxes (including determining whether any interest or penalties imposed with respect of the Payments will be subject to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of independent tax counsel selected by the Company’s independent auditors and reasonably acceptable to Executive (“Tax Counsel”), a Payment (in whole or in part) does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code, or such “excess parachute payments” (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by Tax Counsel in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive retains an amount shall be deemed to pay federal income tax at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment equal is to be made and state and local income taxes at the Excise Tax imposed upon highest effective rates of taxation applicable to individuals as are in effect in the Payments. Notwithstanding state and locality of Executive’s residence or place of employment in the foregoing provisions of this Section 6(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that calendar year in which the Payment does not exceed 110% of the greatest amount that could be paid to Executive without giving rise to any Excise Tax (the "Safe Harbor Amount"), then no Gross-Up Payment shall is to be made to Executive and the amounts payable under this Agreement shall be reduced so that the Paymentmade, in the aggregate, are reduced to the Safe Harbor Amount. The reduction net of the amounts payable hereundermaximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, if applicable, shall be made by first reducing taking into account any limitations applicable to individuals subject to federal income tax at the payments under Section 3(a), unless an alternative method of reduction is elected by Executivehighest marginal rates.

Gross-Up. a. In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or combination thereofany acceleration of any payment, award, benefit or distribution) by the Company, Company (or any of its affiliates, affiliated entities) or one any entity which effectuates a Change in Control (or more trusts established by the Company for the benefit any of its employees, affiliated entities) to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, Agreement or otherwise, but determined without regard to any additional payments required under this Section 6) (a "Payment"the “Payments”) is would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "“Excise Tax"”), then the Company shall promptly pay to the Executive shall be entitled to receive an additional payment (a "Gross-Up “Reimbursement Payment"”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect theretoExcise Tax) and the Excise Tax imposed upon the Gross-Up Reimbursement Payment, the Executive retains an amount of the Gross-Up Reimbursement Payment equal to the Excise Tax imposed upon the Payments. For purposes of determining the amount of the Reimbursement Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Reimbursement Payment is to be made and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Reimbursement Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Notwithstanding the foregoing provisions of this Section 6(a)foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Reimbursement Payment, but that the Payment does Payments would not exceed 110be subject to the Excise Tax if the Payments were reduced by an amount that is no more than 10% of the greatest portion of the Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to any the Excise Tax (the "“Safe Harbor Amount"Cap”), then and no Gross-Up Reimbursement Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are reduced to the Safe Harbor AmountExecutive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the benefits under Section 4(a)(v), then reducing the cash payments under Section 3(a4(a)(i), unless an alternative method 4(a)(ii), 4(a)(iii) and 4(a)(iv), and then reducing the accelerated vesting under Section 4(d) (first by not vesting equity awards that are not Section 409A “deferred compensation” and then by not vesting equity awards that are Section 409A “deferred compensation”). For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction is elected by Executiveof the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Gross-Up. a. A. In the event it shall be determined that any payment, payment or benefit received or distribution (or combination thereof) to be received by the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, or otherwise) Agreement (a the "Contract Payment") is or in connection with Executive's termination of employment or contingent upon a Change in Control of the Company pursuant to any plan or arrangement or other agreement with the Company (or any affiliate) ("Other Payments" and, together with the Contract Payments, the "Payments") would be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect Code, as determined as provided below, the Company shall pay to such excise tax (such excise taxExecutive, together with any such interest and penaltiesat the time specified in Section 5(B) below, hereinafter collectively referred to as the "Excise Tax"), Executive shall be entitled to receive an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by Executive, after deduction of the Excise Tax on the Payments and any federal, state and local income or other tax and Excise Tax upon the payment provided for by this Section 5(A), and any interest, penalties or additions to tax payable by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and , shall be equal to the total value of the Payments at the time such Payments are to be made. For purposes of determining whether any of the Payments will be subject to the Excise Tax imposed upon and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of independent tax counsel selected by the Company's independent auditors and reasonably acceptable to Executive ("Tax Counsel"), a Payment (in whole or in part) does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code, or such "excess parachute payments" (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by Tax Counsel in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive retains an amount shall be deemed to pay federal income tax at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross- Up Payment is to be made and state and local income taxes at the highest effective rates of taxation applicable to individuals as are in effect in the state and locality of Executive's residence or place of employment in the calendar year in which the Gross-Up Payment equal is to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 6(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payment does not exceed 110% of the greatest amount that could be paid to Executive without giving rise to any Excise Tax (the "Safe Harbor Amount"), then no Gross-Up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method of reduction is elected by Executivemade.

Gross-Up. a. In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or combination thereofany acceleration of any payment, award, benefit or distribution) by the Company, Company (or any of its affiliates, affiliated entities) or one any entity which effectuates a Change in Control (as defined in the SIP) (or more trusts established by the Company for the benefit any of its employees, affiliated entities) to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, Agreement or otherwise, but determined without regard to any additional payments required under this Section 6) (a "Payment"the “Payments”) is would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "“Excise Tax"”), then the Company shall pay to the Executive shall be entitled to receive an additional payment (a "“Gross-Up Payment"”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto, and any excise tax) and the Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the PaymentsPayments and (y) the product of (A) any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and (B) the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. Notwithstanding For purposes of determining the foregoing provisions amount of this Section 6(a), if it shall be determined that Executive is entitled to a the Gross-Up Payment, but that the Payment does not exceed 110% Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the greatest amount that could be paid to Executive without giving rise to any Excise Tax (calendar year in which the "Safe Harbor Amount"), then no Gross-Up Payment shall is to be made made, (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to Executive be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the amounts payable under this Agreement shall be reduced so that inclusion of the Payment, Gross-Up Payment in the aggregate, are reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method of reduction is elected by Executive’s adjusted gross income.

Gross-Up. a. In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or combination thereofincluding any acceleration) by AESC (or any of the CompanyAE Companies) or any entity which effectuates a transaction described in Section 280G(b)(2)(A)(i) of the Internal Revenue Code of 1986, as amended (the “Code”) (or any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, ) to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, Agreement or otherwise, but determined without regard to any additional payments required under this Exhibit A) (a "“Payment"”) is would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax by the Executive (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "“Excise Tax"”), then the Executive shall be entitled to receive an additional payment (a "“Gross-Up Payment"”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax Taxes imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions For purposes of this Section 6(a)Exhibit A, if it the Executive shall be determined that Executive deemed to pay federal, state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross Up Payment is entitled to a Gross-Up Paymentbe made, but that taking into account the Payment does not exceed 110% of the greatest amount that maximum reduction in federal income taxes which could be paid to Executive without giving rise to any Excise Tax (obtained from the "Safe Harbor Amount"), then no Gross-Up Payment shall be made to Executive deduction of state and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method of reduction is elected by Executivelocal income taxes.

Gross-Up. a. A. In the event it shall be determined that any payment, payment or benefit received or distribution (or combination thereof) to be received by the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, Agreement (the "Contract Payments") or otherwisein connection with Executive's termination of employment or contingent upon a Change in Control of the Company pursuant to any plan or arrangement or other agreement with the Company (or any affiliate) (a "PaymentOther Payments" and, together with the Contract Payments, the "Payments") is would be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect Code, as determined as provided below, the Company shall pay to such excise tax (such excise taxExecutive, together with any such interest and penaltiesat the time specified in Section 5(B) below, hereinafter collectively referred to as the "Excise Tax"), Executive shall be entitled to receive an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by Executive, after deduction of the Excise Tax on the Payments and any federal, state and local income or other tax and Excise Tax upon the payment provided for by this Section 5(A), and any interest, penalties or additions to tax payable by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and , shall be equal to the total value of the Payments at the time such Payments are to be made. For purposes of determining whether any of the Payments will be subject to the Excise Tax imposed upon and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as "parachute payments" within the meaning of Section 28OG(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 28OG(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of independent tax counsel selected by the Company's independent auditors and reasonably acceptable to Executive ("Tax Counsel"), a Payment (in whole or in part) does not constitute a "parachute payment" within the meaning of Section 28OG(b)(2) of the Code, or such "excess parachute payments" (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of "excess parachute payments" within the meaning of Section 28OG(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by Tax Counsel in accordance with the principles of Sections 28OG(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive retains an amount shall be deemed to pay federal income tax at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment equal is to be made and state and local income taxes at the Excise Tax imposed upon highest effective rates of taxation applicable to individuals as are in effect in the Payments. Notwithstanding state and locality of Executive's residence or place of employment in the foregoing provisions of this Section 6(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that calendar year in which the Payment does not exceed 110% of the greatest amount that could be paid to Executive without giving rise to any Excise Tax (the "Safe Harbor Amount"), then no Gross-Up Payment shall is to be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method of reduction is elected by Executivemade.

Gross-Up. a. (a) In the event it shall be determined that any payment, payment or benefit received or distribution (or combination thereof) to be received by the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, Agreement (the "Contract Payments") or otherwiseotherwise in connection with Executive's termination of employment or contingent upon a change in ownership or control pursuant to any plan or arrangement or other agreement with the Company (or any affiliate) (a "PaymentOther Payments" and, together with the Contract Payments, the "Payments") is would be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect Code, as determined as provided below, the Company shall pay to such excise tax (such excise taxExecutive, together with any such interest and penaltiesat the time specified in Section 5(b) below, hereinafter collectively referred to as the "Excise Tax"), Executive shall be entitled to receive an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by Executive, after deduction of the Excise Tax on the Payments and any federal, state and local income or other tax and excise tax upon the payment provided for by this Section 5(a), and any interest, penalties or additions to tax payable by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and , shall be equal to the total value of the Payments at the time such Payments are to be made. For purposes of determining whether any of the Payments will be subject to the Excise Tax imposed upon and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of independent tax counsel selected by the Company's independent auditors and reasonably acceptable to Executive ("Tax Counsel"), a Payment (in whole or in part) does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code, or such "excess parachute payments" (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any non-cash benefits or any deferred payment or benefit shall be determined by Tax Counsel in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive retains an amount shall be deemed to pay federal income tax at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment equal is to be made and state and local income taxes at the Excise Tax imposed upon highest effective rates of taxation applicable to individuals as are in effect in the Payments. Notwithstanding state and locality of Executive's residence or place of employment in the foregoing provisions of this Section 6(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that calendar year in which the Payment does not exceed 110% of the greatest amount that could be paid to Executive without giving rise to any Excise Tax (the "Safe Harbor Amount"), then no Gross-Up Payment shall is to be made to Executive and the amounts payable under this Agreement shall be reduced so that the Paymentmade, in the aggregate, are reduced to the Safe Harbor Amount. The reduction net of the amounts payable hereundermaximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, if applicable, shall be made by first reducing taking into account any limitations applicable to individuals subject to federal income tax at the payments under Section 3(a), unless an alternative method of reduction is elected by Executivehighest marginal rates.

Gross-Up. a. In the event that it shall be determined (as hereafter provided) that any payment, benefit or distribution (or combination thereof) by the Company, any of its affiliates, or one or more trusts established payment by the Company for the benefit of its employees, or Paradyne to or for the benefit of Executive (Consultant, whether paid or payable or distributed or distributable pursuant to the terms of this AgreementAgreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, or otherwise) the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (collectively, a "“Payment") is ”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code (or any successor provision thereto) by reason of being considered “contingent on a change in ownership or control” of Paradyne, within the meaning of Section 280G of the Internal Revenue Code (or any successor provision thereto), or to any similar tax imposed by state or local law, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise taxtax or taxes, together with any such interest and penalties, hereinafter being hereafter collectively referred to as the "“Excise Tax"”), Executive then Consultant shall be entitled to receive an additional payment or payments (collectively, a "“Gross-Up Payment") ”). The Gross-Up Payment shall be in an amount such that that, after payment by Executive Consultant of all taxes taxes, including any Excise Tax (and including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Executive Consultant retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the PaymentsPayment. Notwithstanding All determinations required to be made under this Section, including whether an Excise Tax is payable by Consultant and the foregoing provisions amount of this Section 6(a), if it shall such Excise Tax and whether a Gross-Up Payment is required to be determined that Executive is entitled paid by the Company to a Consultant and the amount of such Gross-Up Payment, but that if any, shall be made in good faith by a nationally recognized accounting or law firm (the Payment does not exceed 110% “Accounting or Law Firm”) selected by the Company. For purposes of the greatest amount computations required by this Section (i) to the extent not otherwise specified here, reasonable assumptions and approximations may be made with respect to applicable taxes and reasonable good faith interpretations of the Code may be relied upon, and (ii) Consultant shall be deemed to pay federal, state and local income and, if applicable, payroll taxes at the highest marginal rate of taxation. If the Accounting Firm determines that could be paid to Executive without giving rise to any Excise Tax (is payable by Consultant, the "Safe Harbor Amount"), then no Company shall pay the required Gross-Up Payment to Consultant within five (5) business days after receipt of such determination. If the Accounting or Law Firm determines that no Excise Tax is payable by Consultant, it shall be made at the same time as it makes such determination, furnish the Company and Consultant an opinion that Consultant has substantial authority not to Executive report any Excise Tax on his federal, state or local income or other tax return. The Company and Consultant shall each provide the amounts payable under this Agreement shall be reduced so that the PaymentAccounting or Law Firm access to and copies of any books, records and documents in the aggregate, are reduced to the Safe Harbor Amount. The reduction possession of the amounts payable hereunderCompany or Consultant, if applicableas the case may be, shall be made reasonably requested by first reducing the payments under Accounting or Law Firm, and otherwise cooperate with the Accounting or Law Firm in connection with the preparation and issuance of the determination and calculations contemplated by this Section 3(a), unless an alternative method of reduction is elected by Executive9.

Gross-Up. a. In the event (a) If it shall be is determined that any payment, benefit or distribution (or combination thereof) by the Company, or by any of its affiliates, or one or more trusts trust established by the Company for the benefit of its employeesemployees or by a person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) or any person affiliated with the Company or such person, to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, Agreement or otherwise) otherwise (a "“Payment"”)) is would be subject to the excise tax imposed by Section 4999 of the Code Code, or any successor provision, and any interest or penalties are incurred by the Executive with respect to such excise tax (such the excise tax, together with any such interest and penaltiespenalties thereon, hereinafter collectively referred to as the "“Excise Tax"”), the Executive shall be entitled to receive an additional payment (a "“Gross-Up up Payment"”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Paymentup Payment (and any interest or penalties), the Executive retains shall retain an amount of the Gross-Up up Payment equal to the sum of (i) the amount of the Excise Tax imposed upon the PaymentsPayment or the Gross-up Payment and (ii) without duplication, an amount equal to the product of (1) any deductions disallowed for federal, state or local income tax purposes because of the inclusion of the Gross-up Payment in the Executive’s adjusted gross income, and (2) the highest applicable marginal rate of federal, state or local income taxation, respectively, for the calendar year in which the Gross-up Payment is made or is to be made. Notwithstanding the foregoing provisions The intent of this Section 6(a), if it shall be determined that Executive 4 is entitled to a Gross-Up Payment, but that the Payment does Executive, after paying his federal, state and local income taxes and payroll taxes, will be in the same position as if he was not exceed 110% of subject to the greatest amount that could be paid to Executive without giving rise to any Excise Tax (and did not receive the "Safe Harbor Amount"), then no Gross-Up Payment shall be made extra amounts pursuant to Executive and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method of reduction is elected by Executive4.

Gross-Up. a. In the event (a) If it shall be is determined that any payment, benefit or distribution (or combination thereof) by the Company, or by any of its affiliates, or one or more trusts trust established by the Company for the benefit of its employeesemployees or by a person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) or any person affiliated with the Company or such person, to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, Agreement or otherwise) otherwise (a "“Payment"”)) is would be subject to the excise tax imposed by Section 4999 of the Code Code, or any successor provision, and any interest or penalties are incurred by the Executive with respect to such excise tax (such the excise tax, together with any such interest and penaltiespenalties thereon, hereinafter collectively referred to as the "“Excise Tax"”), the Executive shall be entitled to receive an additional payment (a "“Gross-Up up Payment"”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Paymentup Payment (and any interest or penalties), the Executive retains shall retain an amount of the Gross-Up up Payment equal to the sum of (i) the amount of the Excise Tax imposed upon the PaymentsPayment or the Gross-up Payment and (ii) without duplication, an amount equal to the product of (1) any deductions disallowed for federal, state or local income tax purposes because of the inclusion of the Gross-up Payment in the Executive’s adjusted gross income, and (2) the highest applicable marginal rate of federal, state or local income taxation, respectively, for the calendar year in which the Gross-up Payment is made or is to be made. The intent of this Section 4 is that the Executive, after paying his federal, state and local income taxes and payroll taxes, will be in the same position as if he was not subject to the Excise Tax and did not receive the extra amounts pursuant to this Section 4. Notwithstanding the foregoing provisions of this Section 6(a4(a), if it shall be determined that the Executive is would otherwise be entitled to a Gross-Up up Payment, but that the Payment does Payments do not exceed one hundred ten percent (110% %) of the greatest amount (the “Reduced Amount”) that could be paid to the Executive without giving such that the receipt of Payments would not give rise to any Excise Tax (the "Safe Harbor Amount")Tax, then no Gross-Up up Payment shall be made to the Executive and the amounts payable under this Agreement shall be reduced so that the PaymentPayments, in the aggregate, are shall be reduced to the Safe Harbor Reduced Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method of reduction is elected by Executive.

Gross-Up. a. In the event it shall be determined that any payment, benefit or distribution (or combination thereof) by the Company, any of its affiliatesAffiliates, or one or more trusts established by the Company for the benefit of its employees, to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, or otherwise) (a "“Payment"”) is subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the "“Excise Tax"”), Executive shall be entitled to receive an additional payment (a "“Gross-Up Payment"”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 6(a5(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payment does not exceed 110% of the greatest amount that could be paid to Executive without giving rise to any Excise Tax (the "“Safe Harbor Amount"”), then no Gross-Up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are is reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method of reduction is elected by Executive.

Gross-Up. a. (A) In the event it shall be determined any payment that is either received by the Executive or paid by the Company on his behalf or any paymentproperty, or any other benefit provided to him under this Agreement or distribution under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or combination thereofin the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if the payment or other benefit is in connection with the Executive’s employment by the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, or otherwise) (a "collectively the “Payment") ”), is subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the "“Excise Tax"”), Executive shall be entitled to receive an additional payment (a "“Gross-Up Payment"”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 6(a), 5(e)(ii) if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payment does not exceed 110% of the greatest amount that could be paid to Executive without giving rise to any Excise Tax (the "“Safe Harbor Amount"”), then no Gross-Up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are is reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the cash payments under Section 3(a5(e) (other than any Accrued Benefits), unless an alternative method of reduction is elected by Executive.

Gross-Up. a. (a) In the event it shall be determined that any payment, benefit or distribution (or combination thereof) by the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, or otherwise) (a "Payment") is would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the "Excise Tax"), the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Gross- Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding (b) Subject to the foregoing provisions of Section 18(c), all determinations required to be made under this Section 6(a18, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized certified public accounting firm as may be designated by the Executive (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (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. In the event that the Accounting Firm is serving as accountant or auditor for an individual, entity or group effecting the change in ownership or effective control (within the meaning of Section 280G of the Code), if it the 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 determined that Executive is entitled to a borne solely by the Company. Any Gross-Up Payment, but that as determined pursuant to this Section 18, shall be paid by the Payment does not exceed 110% Company to the Executive within five (5) business days after the receipt of the greatest amount Accounting Firm's determination. If the Accounting Firm determines that could be paid to Executive without giving rise to any no Excise Tax is payable by the Executive, it shall so indicate to the Executive in writing. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (the "Safe Harbor AmountUnderpayment"), then no Gross-Up Payment consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 18(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be made promptly paid by the Company to Executive and or for the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method of reduction is elected by Executive's benefit.

Gross-Up. a. In the event it shall be determined that any payment, payment or benefit made or distribution (or combination thereof) by the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, provided to or for the benefit of Executive (whether paid in connection with this Agreement or payable his employment with the Company or distributed or distributable pursuant to the terms of this Agreement, or otherwise) termination thereof (a "Payment") is determined to be subject to the any excise tax ("Excise Tax") imposed by Section 4999 of the Code (or any interest or penalties are incurred by Executive successor to such Section), the Company shall pay to Executive, prior to the time any Excise Tax is payable with respect to such excise tax Payment (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the "Excise Tax"through withholding or otherwise), Executive shall be entitled to receive an additional payment amount (a "Gross-Up Payment") in an amount such that which, after payment by Executive the imposition of all taxes income, employment, excise and other taxes, penalties and interest thereon, is equal to the sum of (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect theretoi) and the Excise Tax imposed upon on such Payment plus (ii) any penalty and interest assessments associated with such Excise Tax. The determination of whether any Payment is subject to an Excise Tax and, if so, the Gross-Up Payment, Executive retains an amount and time of the any Gross-Up Payment equal pursuant to this Section 9 shall be made by an independent auditor (the "Auditor") jointly selected by the parties and paid by the Company. Unless Executive agrees otherwise in writing, the Auditor shall be a nationally recognized United States public accounting firm that has not, during the two years preceding the date of its selection, acted in any way on behalf of the Company or any of its affiliates. If the parties cannot agree on the firm to serve as the Auditor, then the parties shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor. The parties shall cooperate with each other in connection with any Proceeding or Claim relating to the existence or amount of any liability for Excise Tax imposed upon the PaymentsTax. Notwithstanding the foregoing provisions of this Section 6(a), if it All expenses relating to any such Proceeding or Claim (including attorneys' fees and other expenses incurred by Executive in connection therewith) shall be determined that Executive is entitled paid by the Company promptly upon demand by Executive, and any such payment shall be subject to a Gross-Up Payment, but Payment under this Section 9 in the event that the Payment does not exceed 110% of the greatest amount that could be paid Executive is subject to Executive without giving rise to any Excise Tax (the "Safe Harbor Amount"), then no Gross-Up Payment on such payment. This Section 9 shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are reduced to the Safe Harbor Amount. The reduction apply irrespective of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method whether a Change of reduction is elected by ExecutiveControl has occurred.

Gross-Up. a. In the event it shall be determined that any payment, benefit or distribution (or combination thereof) by the Company, any of its affiliatesCompany or Parent, or one or more trusts any trust established by the Company Company, Parent or any other person or entity for the benefit of its employees, to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, the Prior Agreement or otherwise) otherwise pursuant to the terms of any compensatory arrangement between the Company and the Executive on or prior to the date hereof (a "“Payment"”) is would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or of 1986, as amended (the “Code”) and any interest or penalties are incurred by the Executive with respect to such excise tax (such the excise tax, together with any such interest and penaltiespenalties thereon, hereinafter collectively referred to as the "“Excise Tax"”), the Executive shall be entitled to receive an additional payment (a "“Gross-Up up Payment"”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up up Payment, the Executive retains an amount of the Gross-Up up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding Subject to the foregoing provisions of set out below, all determinations required to be made under this Section 6(a)3, if it shall be determined that Executive is entitled to including whether and when a Gross-Up Payment, but that up Payment is required and the Payment does not exceed 110% amount of the greatest amount that could be paid to Executive without giving rise to any Excise Tax (the "Safe Harbor Amount"), then no such Gross-Up up Payment shall be made to Executive and the amounts payable under this Agreement shall assumptions to be reduced so that the Payment, utilized in the aggregate, are reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicablearriving at such determination, shall be made by first reducing Ernst & Young LLP unless the payments under Executive and the Company mutually agree to use another nationally recognized certified public accounting firm as may be agreed by the Executive and the Company (the “Accounting Firm”). 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(a)3, unless an alternative method shall be paid by the Company to the Executive within five (5) days after the receipt of reduction the Accounting Firm’s determination. If the Accounting Firm determines that no Excise Tax is elected payable by the Executive., it shall so indicate to the Executive in writing. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-up Payment. Such notification shall be given no later than ten (10) business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of the claim and the date of requested payment. The Executive shall not pay the claim prior to the expiration of the thirty (30) day period following the date on which it gives notice to the Company. If the Company notifies the Executive in writing prior to the expiration of the period that it desires to contest such claim, the Executive shall:

Gross-Up. a. (a) In the event it shall be determined that any payment, benefit or distribution (or combination thereof) by the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, or otherwiseotherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right, phantom equity awards or similar right, or the lapse or termination of ant restriction on the vesting or exercisability of any of the foregoing) (a "Payment") is would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") by reason of being "contingent on a change in ownership or control" of the Company, within Section 280G of the Code (or any successor provision thereto) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the "Excise Tax"), then the Executive shall be entitled to receive an additional payment or payments (a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 6(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payment does not exceed 110% of the greatest amount that could be paid to Executive without giving rise to any Excise Tax (the "Safe Harbor Amount"), then no Gross-Up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method of reduction is elected by Executive.

Gross-Up. a. (a) In the event it shall be determined that any payment, benefit or distribution (or combination thereof) ), whether paid or payable or distributed or distributable pursuant to the terms of this agreement, or otherwise, by the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, or otherwise) (a "“Payment"”) is subject to the excise tax imposed by Section 4999 of the Internal Revenue Code (the “Code”) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the "“Excise Tax"”), the Executive shall be entitled to receive an additional payment or payments (each, a "“Gross-Up Payment"”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to one-half of the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions foregoing, the parties will work together in good faith, prior to the payment of this Section 6(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payment does not exceed 110% of the greatest amount any Payments that could be paid subject to Executive without giving rise an Excise Tax, to take reasonable actions to avoid the imposition any Excise Tax (on the "Safe Harbor Amount"Executive, including by seeking shareholder approval in a manner intended to comply with the shareholder approval exception under Code Section 280G(b)(5), then no Gross-Up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method of reduction is elected by Executive.

Gross-Up. a. In If an Indemnitee shall not be entitled to a corresponding and equal deduction with respect to any payment or Tax which the event it shall be determined that Lessee is required to pay or reimburse under any payment, benefit or distribution (or combination thereof) by the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms other provision of this AgreementArticle VII (each such payment or reimbursement under this Article VII, an “original payment”) and which original payment constitutes income to such Indemnitee when accrued or otherwise) (received, then the Lessee shall pay to such Indemnitee on demand the amount of such original payment on a "Payment") is subject to the excise tax grossed-up basis such that, after subtracting all Taxes imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive on such Indemnitee with respect to such excise tax (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the "Excise Tax"), Executive shall be entitled to receive an additional payment (a "Grossgrossed-Up Payment") in an amount such that after up payment by Executive of all taxes the Lessee (including any interest or penalties imposed with respect Taxes otherwise excluded by Section 7.2(a)(i) and assuming for this purpose that such Indemnitee was subject to such taxestaxation at the highest United States federal, state and local marginal rates applicable to corporations and, in the case of Withholding Taxes subject to indemnification pursuant to Section 7.2(a)(iii), includingthe marginal rates actually applicable to the Indemnitee for the year in which such income is taxable), without limitationsuch amount (i.e., any income the grossed-up payment minus the taxes (and any interest and penalties imposed with respect theretothereon) and the Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment shall be equal to the Excise Tax imposed upon original payment to be received or reimbursed (net of any credits, deductions or other tax benefits then actually recognized that arise from the Paymentspayment by such Indemnitee of any amount, including taxes, for which the payment to be received is made) (“Grossed-Up Basis”). Notwithstanding At the foregoing provisions Lessee’s request, the amount of this Section 6(a), if it any indemnification payment by the Lessee required to be made on such “Grossed-Up Basis” shall be determined that Executive is entitled verified and certified by an independent public accounting firm mutually acceptable to a Gross-Up Payment, but that the Payment does not exceed 110% Lessee and the applicable Indemnitee. The fees and expenses of the greatest amount that could such independent public accounting firm shall be paid to Executive without giving rise to any Excise Tax (by the "Safe Harbor Amount"), then no Gross-Up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are reduced to the Safe Harbor AmountLessee. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method of reduction is elected by ExecutiveSECTION 7.7.

Gross-Up. a. In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or combination thereofincluding any acceleration) by AESC (or any of the CompanyAE Companies) or any entity which effectuates a transaction described in Section 280G(b)(2)(A)(i) of the Internal Revenue Code of 1986, as amended (the “Code”) (or any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, ) to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, Agreement or otherwise, but determined without regard to any additional payments required under this Exhibit B) (a "“Payment"”) is would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax by the Executive (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "“Excise Tax"”), then the Executive shall be entitled to receive an additional payment (a "“Gross-Up Payment"”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax Taxes imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions For purposes of this Section 6(a)Exhibit B, if it the Executive shall be determined that Executive deemed to pay federal, state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross Up Payment is entitled to a Gross-Up Paymentbe made, but that taking into account the Payment does not exceed 110% of the greatest amount that maximum reduction in federal income taxes which could be paid to Executive without giving rise to any Excise Tax (obtained from the "Safe Harbor Amount"), then no Gross-Up Payment shall be made to Executive deduction of state and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method of reduction is elected by Executivelocal income taxes.

Gross-Up. a. (a) In the event it shall be determined that any payment, benefit or distribution (or combination thereof) by the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, the Employment Agreement or otherwise) (a "“Payment"”) is subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the "“Excise Tax"”), Executive shall be entitled to receive an additional payment (a "“Gross-Up Payment"”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 6(a4(a), if it shall be determined that Executive is entitled to a Gross-Gross Up Payment, but that the Payment does not exceed 110% of the greatest amount that could be paid to Executive without giving rise to any Excise Tax (the "“Safe Harbor Amount"”), then no Gross-Gross Up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are is reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a)3, unless an alternative method of reduction is elected by Executive.

Gross-Up. a. In the event it shall be determined that any payment, award, benefit or distribution (or combination thereofincluding any acceleration) by the CompanyCompany (or any of the AE Companies) or any entity which effectuates a transaction described in Section 280G(b)(2)(A)(i) of the Internal Revenue Code of 1986, as amended (the “Code”) (or any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, ) to or for the benefit of Executive the Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, Agreement or otherwise, but determined without regard to any additional payments required under this Exhibit A) (a "“Payment"”) is would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code ”) or any interest or penalties are incurred by Executive with respect to such excise tax by the Employee (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "“Excise Tax"”), Executive then the Employee shall be entitled to receive an additional payment (a "“Gross-Up Payment"”) in an amount such that after payment by Executive the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax Taxes imposed upon the Gross-Up Payment, Executive the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions For purposes of this Section 6(a)Exhibit A, if it the Employee shall be determined that Executive deemed to pay federal, state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross Up Payment is entitled to a Gross-Up Paymentbe made, but that taking into account the Payment does not exceed 110% of the greatest amount that maximum reduction in federal income taxes which could be paid to Executive without giving rise to any Excise Tax (obtained from the "Safe Harbor Amount"), then no Gross-Up Payment shall be made to Executive deduction of state and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method of reduction is elected by Executivelocal income taxes.

Gross-Up. a. In the event it shall be determined that any payment, benefit or distribution (or combination thereof) by the Company, or any of its affiliates, or one or more trusts trust established by the Company for the benefit of its employees, to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, or otherwise) Agreement (a "Payment") is would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or and any interest or penalties are incurred by the Executive with respect to such excise tax (such the excise tax, together with any such interest and penaltiespenalties thereon, hereinafter collectively referred to as the "Excise Tax"), the Executive shall be entitled to receive an additional payment (a "Gross-Up up Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up up Payment, the Executive retains an amount of the Gross-Up up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding Subject to the foregoing provisions of set out below, all determinations required to be made under this Section 6(a)8, if it shall be determined that Executive is entitled to including whether and when a Gross-Up Payment, but that up Payment is required and the Payment does not exceed 110% amount of the greatest amount that could be paid to Executive without giving rise to any Excise Tax (the "Safe Harbor Amount"), then no such Gross-Up up Payment shall be made to Executive and the amounts payable under this Agreement shall assumptions to be reduced so that the Payment, utilized in the aggregate, are reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicablearriving at such determination, shall be made by first reducing a nationally recognized certified public accounting firm as may be designated by the payments under Executive (the "Accounting Firm"). 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(a)8, unless an alternative method shall be paid by the Company to the Executive within five (5) days after the receipt of reduction the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is elected payable by the Executive., it shall so indicate to the Executive in writing. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-up Payment. Such notification shall be given no later than ten (10) business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of the claim and the date of requested payment. The Executive shall not pay the claim prior to the expiration of the thirty (30) day period following the date on which it gives notice to the Company. If the Company notifies the Executive in writing prior to the expiration of the period that it desires to contest such claim, the Executive shall:

Gross-Up. a. In the event it shall be determined that any payment, payment or benefit made or distribution (or combination thereof) by the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, provided to or for the benefit of Executive (whether paid in connection with this Agreement or payable his employment with the Company or distributed or distributable pursuant to the terms of this Agreement, or otherwise) termination thereof (a "“Payment"”) is determined to be subject to the any excise tax (“Excise Tax”) imposed by Section 4999 of the Code (or any interest or penalties are incurred by Executive successor to such Section), the Company shall pay to Executive, prior to the time any Excise Tax is payable with respect to such excise tax Payment (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the "Excise Tax"through withholding or otherwise), Executive shall be entitled to receive an additional payment amount (a "“Gross-Up Payment"”) in an amount such that which, after payment by Executive the imposition of all taxes income, employment, excise and other taxes, penalties and interest thereon, is equal to the sum of (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect theretoi) and the Excise Tax imposed upon on such Payment plus (ii) any penalty and interest assessments associated with such Excise Tax. The determination of whether any Payment is subject to an Excise Tax and, if so, the Gross-Up Payment, Executive retains an amount and time of the any Gross-Up Payment equal pursuant to this Section 8 shall be made by an independent auditor (the “Auditor”) jointly selected by the parties and paid by the Company. Unless Executive agrees otherwise in writing, the Auditor shall be a nationally recognized United States public accounting firm that has not, during the two years preceding the date of its selection, acted in any way on behalf of the Company or any of its affiliates. If the parties cannot agree on the firm to serve as the Auditor, then the parties shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor. The parties shall cooperate with each other in connection with any Proceeding or Claim relating to the existence or amount of any liability for Excise Tax imposed upon the PaymentsTax. Notwithstanding the foregoing provisions of this Section 6(a), if it All expenses relating to any such Proceeding or Claim (including attorneys’ fees and other expenses incurred by Executive in connection therewith) shall be determined that Executive is entitled paid by the Company promptly upon demand by Executive, and any such payment shall be subject to a Gross-Up Payment, but Payment under this Section 8 in the event that the Payment does not exceed 110% of the greatest amount that could be paid Executive is subject to Executive without giving rise to any Excise Tax (the "Safe Harbor Amount"), then no Gross-Up Payment on such payment. This Section 8 shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are reduced to the Safe Harbor Amount. The reduction apply irrespective of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method whether a Change of reduction is elected by ExecutiveControl has occurred.

Gross-Up. a. In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or combination thereofany acceleration of any payment, award, benefit or distribution) by the Company, Company (or any of its affiliates, affiliated entities) or one any entity which effectuates a Change in Control (or more trusts established by the Company for the benefit any of its employees, affiliated entities) to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, Agreement or otherwise, but determined without regard to any additional payments required under this Section 6) (a "Payment"the “ Payments ”) is would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “ Code ”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "“ Excise Tax"Tax ”), then the Company shall pay to the Executive shall be entitled to receive an additional payment (a "“ Gross-Up Payment"Payment ”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto, and any excise tax) and the Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the PaymentsPayments and (y) the product of (A) any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and (B) the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. Notwithstanding For purposes of determining the foregoing provisions amount of this Section 6(a), if it shall be determined that Executive is entitled to a the Gross-Up Payment, but that the Payment does not exceed 110% Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the greatest amount that could be paid to Executive without giving rise to any Excise Tax (calendar year in which the "Safe Harbor Amount"), then no Gross-Up Payment shall is to be made made, (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to Executive be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the amounts payable under this Agreement shall be reduced so that inclusion of the Payment, Gross-Up Payment in the aggregate, are reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method of reduction is elected by Executive’s adjusted gross income.

Gross-Up. a. (a) In the event it shall be determined that any payment, payment or benefit received or distribution (or combination thereof) to be received by the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, Agreement (the “Contract Payments”) or otherwiseotherwise in connection with Executive’s termination of employment or contingent upon a change in ownership or control pursuant to any plan or arrangement or other agreement with the Company (or any affiliate) (a "Payment"“Other Payments” and, together with the Contract Payments, the “Payments”) is would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code Code, as determined as provided below, the Company shall pay to Executive, at the time specified in Section 5(b) below, an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of the Excise Tax on the Payments and any federal, state and local income or other tax and excise tax upon the payment provided for by this Section 5(a), and any interest interest, penalties or penalties are incurred additions to tax payable by Executive with respect to such excise tax (such excise taxthereto, together with any such interest and penalties, hereinafter collectively referred to as the "Excise Tax"), Executive shall be entitled equal to receive an additional payment (a "Gross-Up Payment") in an amount the total value of the Payments at the time such that after payment by Executive Payments are to be made. For purposes of all taxes (including determining whether any interest or penalties imposed with respect of the Payments will be subject to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of independent tax counsel selected by the Company’s independent auditors and reasonably acceptable to Executive (“Tax Counsel”), a Payment (in whole or in part) does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code, or such “excess parachute payments” (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any non-cash benefits or any deferred payment or benefit shall be determined by Tax Counsel in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive retains an amount shall be deemed to pay federal income tax at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment equal is to be made and state and local income taxes at the Excise Tax imposed upon highest effective rates of taxation applicable to individuals as are in effect in the Payments. Notwithstanding state and locality of Executive’s residence or place of employment in the foregoing provisions of this Section 6(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that calendar year in which the Payment does not exceed 110% of the greatest amount that could be paid to Executive without giving rise to any Excise Tax (the "Safe Harbor Amount"), then no Gross-Up Payment shall is to be made to Executive and the amounts payable under this Agreement shall be reduced so that the Paymentmade, in the aggregate, are reduced to the Safe Harbor Amount. The reduction net of the amounts payable hereundermaximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, if applicable, shall be made by first reducing taking into account any limitations applicable to individuals subject to federal income tax at the payments under Section 3(a), unless an alternative method of reduction is elected by Executivehighest marginal rates.

Gross-Up. a. In the event (a) If it shall be is determined that any payment, benefit or distribution (or combination thereof) by the Company, or by any of its affiliates, or one or more trusts trust established by the Company for the benefit of its employeesemployees or by a person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) or any person affiliated with the Company or such person, to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, Agreement or otherwise) otherwise (a "“Payment"”)) is would be subject to the excise tax imposed by Section 4999 of the Code Code, or any successor provision, and any interest or penalties are incurred by the Executive with respect to such excise tax (such the excise tax, together with any such interest and penaltiespenalties thereon, hereinafter collectively referred to as the "“Excise Tax"”), the Executive shall be entitled to receive an additional payment (a "“Gross-Up up Payment"”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Paymentup Payment (and any interest or penalties), the Executive retains shall retain an amount of the Gross-Up up Payment equal to the sum of (i) the amount of the Excise Tax imposed upon the PaymentsPayment or the Gross-up Payment and (ii) without duplication, an amount equal to the product of (1) any deductions disallowed for federal, state or local income tax purposes because of the inclusion of the Gross-up Payment in the Executive’s adjusted gross income, and (2) the highest applicable marginal rate of federal, state or local income taxation, respectively, for the calendar year in which the Gross-up Payment is made or is to be made. The intent of this Section 4 is that the Executive, after paying his federal, state and local income taxes and payroll taxes, will be in the same position as if he was not subject to the Excise Tax and did not receive the extra amounts pursuant to this Section 4. Notwithstanding the foregoing provisions of this Section 6(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payment does not exceed 110% of the greatest amount that could be paid to Executive without giving rise to any Excise Tax (the "Safe Harbor Amount"), then no Gross-Up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method of reduction is elected by Executive.this

Gross-Up. a. a In the event it shall be determined that any payment, benefit or distribution (or combination thereof) by the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, or otherwise) (a "Payment") is subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the "Excise Tax"), Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding b All determinations required to be made under this Section 5, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by PricewaterhouseCoopers or such other nationally recognized certified public accounting firm as may be designated by the Company (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and Executive within ten business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company; provided that for purposes of determining the amount of any Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest effective rates applicable to individuals in the state or locality of Executive's residence or place of employment in the calendar year in which any such Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account limitations applicable to individuals subject to federal income tax at the highest marginal rates. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as 5 5 determined pursuant to this Section 5, shall be paid by the Company to Executive (or to the appropriate taxing authority on Executive's behalf) when due. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall so indicate to Executive in writing. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that the amount of the Gross-Up Payment determined by the Accounting Firm to be due to (or on behalf of) Executive was lower than the amount actually due ("Underpayment"). In the event that the Company exhausts its remedies pursuant to Section 5(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive. c Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the thirty day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order to effectively contest such claim and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 6(a5(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and sue xxx a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in 6 6 one or more appellate courts, as the Company shall determine; provided, further, that if it the Company directs Executive to pay such claim and sue xxx a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; provided, further, that if Executive is required to extend the statute of limitations to enable the Company to contest such claim, Executive may limit this extension solely to such contested amount. The Company's control of the contest shall be determined that limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive is shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. d If, after the receipt by Executive of an amount paid or advanced by the Company pursuant to this Section 5, Executive becomes entitled to receive any refund with respect to a Gross-Up Payment, but Executive shall (subject to the Company's complying with the requirements of Section 5(c)) promptly pay to the Company the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 5(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Payment Company does not exceed 110% notify Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the greatest amount that could be paid to Executive without giving rise to any Excise Tax (the "Safe Harbor Amount"), then no Gross-Up Payment shall required to be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method of reduction is elected by Executivepaid.

Gross-Up. a. In the event it shall be determined that any payment, benefit compensation and other benefits provided for in this Agreement or distribution (or combination thereof) by the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, to or for the benefit of Executive (whether paid or amounts otherwise payable or distributed or distributable pursuant to the terms Executive constitute “parachute payments” within the meaning of this Agreement, or otherwise) (a "Payment") is Section 280G of the Code and will be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Code, then the Executive with respect shall receive (i) a payment from the Company sufficient to such excise tax (pay such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the "Excise Tax"), Executive shall be entitled to receive (ii) an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect from the Company sufficient to such taxes), including, without limitation, any pay the excise tax and federal and state income taxes (and arising from the payments made by the Company to Executive pursuant to this sentence. Any payment required pursuant to this Section 2 shall be paid as soon as practicable after a determination is made pursuant to this Section; provided that in any interest and penalties imposed with respect thereto) and event, such payment shall be paid by the Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount end of the Gross-Up Payment equal to calendar year next following the Excise Tax imposed upon calendar year in which Executive remits the Paymentsrelated taxes in compliance with Treasury Regulation Section 1.409A-3(i)(1)(v). Notwithstanding the foregoing provisions of Any determination required under this Section 6(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payment does not exceed 110% of the greatest amount that could be paid to Executive without giving rise to any Excise Tax (the "Safe Harbor Amount"), then no Gross-Up Payment shall be made to in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon the Executive and the amounts payable Company for all purposes. In the event that the excise tax incurred by Executive is determined by the Internal Revenue Service to be greater or lesser than the amount so determined by the Accountants, the Company and Executive agree to promptly make such additional payment, including interest and any tax penalties, to the other party as the Accountants reasonably determine is appropriate to ensure that the net economic effect to Executive under this Agreement Section, on an after-tax basis, is as if the Code Section 4999 excise tax did not apply to Executive. For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on interpretations of the Code for which there is a “substantial authority” tax reporting position. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.” This letter agreement may be reduced so that executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the Paymentsame instrument. To indicate your acceptance of this letter agreement, please sign and date this letter in the aggregate, are reduced space provided below on or before [date] and return it to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method of reduction is elected by Executiveme.

Gross-Up. a. (a) In the event it shall be determined that any payment, benefit or distribution (or combination thereof) by the Company), any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, or otherwise) , by the Employer, any of its affiliates, or one or more trusts established by the Employer for the benefit of its employees, to or for the benefit of the Employee (a "“Payment"”) is subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive the Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the "“Excise Tax"”), Executive the Employee shall be entitled to receive an additional payment or payments (each, a "“Gross-Up Payment"”) in an amount such that after payment by Executive the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Executive the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 6(a12(a), if it shall be determined that Executive the Employee is entitled to a Gross-Up Payment, but that the Payment does not exceed 110% of the greatest amount that could be paid to Executive the Employee without giving rise to any Excise Tax (the "“Safe Harbor Amount"”), then no Gross-Up Payment shall be made to Executive the Employee and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are is reduced to the Safe Harbor Amount. The reduction Notwithstanding the foregoing, the parties will work together in good faith, prior to the payment of any Payments that could be subject to an Excise Tax, to take reasonable actions to avoid the imposition any Excise Tax on the Employee, including by seeking shareholder approval in a manner intended to comply with the shareholder approval exception under Code Section 280G(b)(5) (and, to the extent necessary, to secure from the Employee a waiver of the amounts payable hereunder, if applicable, shall Employee’s rights to some or all of the Payments so that all remaining Payments will be made by first reducing the payments deductible “parachute payments” under Section 3(a280G of the Code), unless an alternative method of reduction is elected by Executive.

Gross-Up. a. In the event it shall be determined that any payment, award, benefit or distribution (or combination thereofincluding any acceleration) by the CompanyCompany (or any of the AE Companies) or any entity which effectuates a transaction described in Section 280G(b)(2)(A)(i) of the Internal Revenue Code of 1986, as amended (the “Code”) (or any of its affiliates, or one or more trusts established by the Company for the benefit of its employees, ) to or for the benefit of Executive the Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, Agreement or otherwise, but determined without regard to any additional payments required under this Exhibit A) (a "“Payment"”) is would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or any interest or penalties are incurred by Executive with respect to such excise tax by the Employee (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "“Excise Tax"”), Executive then the Employee shall be entitled to receive an additional payment (a "“Gross-Up Payment"”) in an amount such that after payment by Executive the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax Taxes imposed upon the Gross-Up Payment, Executive the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions For purposes of this Section 6(a)Exhibit A, if it the Employee shall be determined that Executive deemed to pay federal, state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross Up Payment is entitled to a Gross-Up Paymentbe made, but that taking into account the Payment does not exceed 110% of the greatest amount that maximum reduction in federal income taxes which could be paid to Executive without giving rise to any Excise Tax (obtained from the "Safe Harbor Amount"), then no Gross-Up Payment shall be made to Executive deduction of state and the amounts payable under this Agreement shall be reduced so that the Payment, in the aggregate, are reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 3(a), unless an alternative method of reduction is elected by Executivelocal income taxes.

Gross-Up. a. In the event it shall be determined that any payment, benefit or distribution (or combination thereof) by the Company, or any of its affiliates, or one or more trusts trust established by the Company for the benefit of its employees, to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, or otherwise) Agreement (a "“Payment"”) is would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or and any interest or penalties are incurred by the Executive with respect to such excise tax (such the excise tax, together with any such interest and penaltiespenalties thereon, hereinafter collectively referred to as the "“Excise Tax"”), the Executive shall be entitled to receive an additional payment (a "“Gross-Up up Payment"”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up up Payment, the Executive retains an amount of the Gross-Up up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding Subject to the foregoing provisions of set out below, all determinations required to be made under this Section 6(a)8, if it shall be determined that Executive is entitled to including whether and when a Gross-Up Payment, but that up Payment is required and the Payment does not exceed 110% amount of the greatest amount that could be paid to Executive without giving rise to any Excise Tax (the "Safe Harbor Amount"), then no such Gross-Up up Payment shall be made to Executive and the amounts payable under this Agreement shall assumptions to be reduced so that the Payment, utilized in the aggregate, are reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicablearriving at such determination, shall be made by first reducing a nationally recognized certified public accounting firm as may be designated by the payments under Executive (the “Accounting Firm”). 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(a)8, unless an alternative method shall be paid by the Company to the Executive within five (5) days after the receipt of reduction the Accounting Firm’s determination. If the Accounting Firm determines that no Excise Tax is elected payable by the Executive., it shall so indicate to the Executive in writing. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-up Payment. Such notification shall be given no later than ten (10) business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of the claim and the date of requested payment. The Executive shall not pay the claim prior to the expiration of the thirty (30) day period following the date on which it gives notice to the Company. If the Company notifies the Executive in writing prior to the expiration of the period that it desires to contest such claim, the Executive shall: