Common use of Excise Tax Clause in Contracts

Excise Tax. (i) If it is determined that any amount, right or benefit paid or payable (or otherwise provided or to be provided) to the Executive by the Company or any of its affiliates under this Agreement or any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), (collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), subject to the excise tax imposed by Section 4999 of the Code, as amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (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 and employment taxes and 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. (iii) All determinations required to be made under this Section 10(d), including whether and when a Gross-Up Payment or a Reduction is required, the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and the Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d), shall be paid by the Company to the Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Payment.

Excise Tax. (ia) If Anything in this Agreement to the contrary notwithstanding, in the event it is shall be determined that any amountpayment, right award, benefit or distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries to or for the benefit paid or payable of Executive (or otherwise provided or to be provided) whether pursuant to the Executive by the Company or any terms of its affiliates under this Agreement or otherwise, but determined without regard to any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable additional payments required under this Section 10(d), 14) (collectively, the a “PaymentsPayment”), ) would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), be subject to the excise tax imposed by Section 4999 of the CodeCode or any corresponding provisions of state or local tax law, as amended from time or any interest or penalties are incurred by Executive with respect to time such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that, that after payment by the Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of from the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 14(a). (iiib) All Subject to the provisions of Section 14(c), all determinations required to be made under this Section 10(d)14, including the determination of whether and when a Gross-Up Payment or a Reduction is required, required and of the amount of any such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determinationPayment, shall be made by an independent, nationally recognized Company’s independent auditors or such other accounting firm mutually acceptable to agreed by the Company and the Executive Parties hereto (the “AuditorAccounting Firm”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both Company within 15 business days after the receipt of notice from Company and that Executive following has received a Payment, or such earlier time as is requested by Company, provided that any determination that a Reduction or Gross-Up Payment an Excise Tax is necessary. All fees and expenses of the Auditor payable by Executive shall be paid by made on the Companybasis of substantial authority. Any Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 10(d14(b), shall be paid by to Executive (or for the Company benefit of the Executive to the Executive within five extent of Company’s withholding obligation with respect to applicable taxes) no later than the later of (5i) days the due date for the payment of any Excise Tax; and (ii) the receipt of the AuditorAccounting Firm’s determination. All determinations made If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination by the Auditor Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon the Company and Executive. As a result of the uncertainly 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 Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by Company to or for the benefit of Executive; provided that if, notwithstanding . The fees and disbursements of the Auditor’s initial determination, Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise 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 30-day period following the date on which it gives such notice to Company (or other applicable taxing authority) determines such shorter period ending on the date that an additional Excise Tax is due any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the Paymentsexpiration of such period that it desires to contest such claim, Executive shall: (i) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that 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, income tax or employment 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 14(c), Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and s▇▇ for 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 one or more appellate courts, as Company shall determine; provided, however, that if Company directs Executive to pay such claim and s▇▇ for a refund, 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, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, Company may not direct Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the Auditor amount of such advance shall recalculate offset, to the extent thereof, the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay required to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Paymentbe paid.

Excise Tax. (i) If Anything in this Agreement to the contrary notwithstanding, if it is shall be determined that any amount, right payment or distribution to the Executive or for the Executive’s benefit (whether paid or payable (or otherwise provided distributed or to be provideddistributable) pursuant to the Executive by the Company or any terms of its affiliates under this Agreement or any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), otherwise (collectively, the “PaymentsPayment”), ) would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), be subject to the excise tax imposed by Section section 4999 of the Code, as amended from time to time Code or any successor provision (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive from the Company an additional payment from (the Company (a “Gross-Up Payment”) in an amount such that, after payment that the net amount of the Payment and the Gross-Up Payment retained by the Executive after the calculation and deduction of all taxes Excise Taxes (including any interest or penalties imposed with respect to such taxes)) on the payment and all federal, includingstate and local income tax, without limitation, any income and employment taxes tax and Excise Tax (including any interest or penalties imposed upon with respect to such taxes) on the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Executive retains an Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment equal to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax imposed upon than the Paymentsamount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iii) All determinations required to be made under this Section 10(d)5, including whether and when a the Gross-Up Payment or a Reduction is required, required and the amount of such Gross-Up Payment or Reduction Payment, and the assumptions to be utilized in arriving at such determinationdeterminations, shall be made in good faith by an independentthe Accountants (as defined below), nationally recognized accounting firm mutually acceptable to which shall provide the Executive and the Company and the Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations with respect to both the Company and Executive following any determination that a Reduction or such Gross-Up Payment is necessarywithin fifteen (15) business days of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Auditor Accountants shall be paid borne solely by the Company. Any For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Gross-Up Payment, as (A) to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined pursuant without regard to this Section 10(dlimitations on deductions based upon the amount of the Executive’s adjusted gross income), shall be paid and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income. Any determination by the Company to the Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor Accountants shall be binding upon the Company and the Executive; provided . As a result of uncertainty in the application of section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon made will have been an amount less than the determinations made by the Internal Revenue Service (or other applicable taxing authorityCompany should have paid pursuant to this Section 5(f) after taking into account any additional interest and penalties (the “Recalculated AmountUnderpayment”). If the Company exhausts its remedies pursuant to Section 5(f) and the Executive is required to make a payment of any Excise Tax, the Underpayment shall be promptly paid by the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Payment.for his benefit; and

Excise Tax. (ia) If In the event it is shall be determined that any amountpayment, right benefit or distribution (or combination thereof) by the Company, any of the Company’s affiliates, one or more trusts established by the Company for the benefit of its employees, or any other person or entity, 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 provided pursuant to or to be provided) to the Executive by the Company or any reason of its affiliates under this Agreement or any other agreement, policy, plan, program or arrangement under which Executive participates arrangement, including without limitation any stock option, stock appreciation right, phantom equity awards or is a partysimilar right, other than amounts payable under this Section 10(d), (collectively, or the “Payments”), would constitute an “excess parachute payment” within lapse or termination of any restriction on the meaning vesting or exercisability of Section 280G any of the Internal Revenue Code of 1986, as amended foregoing) (a “CodePayment”), ) would be subject to the excise tax imposed by Section 4999 of the CodeCode by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of 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 amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company or payments (a “Gross-Up Payment”) in an amount such that, 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 employment taxes 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. (iiib) All Subject to the provisions of Section 15(a) hereof, all determinations required to be made under this Section 10(d)15, including whether and when a Gross-Up Payment or a Reduction is required, required and the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, a nationally recognized certified public accounting firm mutually acceptable as may be designated by the Company, and reasonably satisfactory to 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 “Auditor”); provided that closing of the change in ownership or control of the event a Reduction Company, or such earlier time as is determined to be required, requested by the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessaryCompany. All fees and expenses of the Auditor Accounting Firm shall be paid borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d)15, shall be paid by the Company to the Executive within five (5or to the appropriate taxing authority on the Executive’s behalf) days when due immediately prior to the date the Executive is required to make payment of any Excise Tax or other taxes. If the receipt of the Auditor’s determination. All determinations made Accounting Firm determines that no Excise Tax is payable by the Auditor 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; provided that if, notwithstanding the Auditor’s initial determination, Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce the Company’s obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Section 4999 of the Code (or other applicable taxing authorityany successor provision thereto) determines and the possibility of similar uncertainty regarding state or local tax law at the time of any determination by the Accounting Firm hereunder, it is possible that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment determined by the Accounting Firm to be due to (or Reduction Amounton behalf of) the Executive is lower than the amount actually due (“Underpayment”). In the event that the Company exhausts its remedies pursuant to Section 15(c) and the Executive thereafter is required to make a payment of any Excise Tax, if applicablethe Accounting Firm shall determine the amount of the Underpayment that has occurred as promptly as possible and notify the Company and the Executive of such calculations, based upon and any such Underpayment (including the determinations made Gross-Up Payment to the Executive) shall be promptly paid by the Company to or for the benefit of the Executive within five (5) business days after receipt of such determination and calculations. (c) 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 any Gross-Up Payment. Such notification shall be given as soon as practicable but 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 such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives such notice to the Company (or other applicable taxing authoritysuch shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall (i) after taking into account give the Company any information which is in the Executive’s possession 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 the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties (with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the “Recalculated Amount”) foregoing provisions of this Section 15(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 the Executive to pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, further, that if the Company directs the Executive to pay such claim and ▇▇▇ for a refund, the Company shall pay the amount of such claim to the Executive, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such payment or with respect to any imputed income with respect to such payment (including the excess applicable Gross-Up Payment); provided, further, that if the Executive is required to extend the statute of limitations to enable the Company to contest such claim, the Executive may limit this extension solely to such contested amount. The Company’s control of the Recalculated Amount over the contest shall be limited to issues with respect to which a Gross-Up Payment initially paid would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. The reimbursement of expenses incurred by the Executive due to a tax contest or litigation addressing the existence or amount of an Excise Tax liability shall be reimbursed promptly, but in no event be made later than the end of the calendar year next following the calendar year in which the taxes that are subject of the contest or litigation are remitted to the Executive taxing authority (or if no taxes are remitted as a result of such audit or litigation, the amount end of the Payments calendar year next following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation). In addition, without extending the time of any obligation in this Section 15, any tax Gross-Up Payment shall be made no later than the end of the calendar year next following the calendar year in which the Executive remits the related tax. (d) If, after the Reductionreceipt by the Executive of an amount paid by the Company pursuant to this Section 15, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Executive becomes entitled to receive any refund with respect to a Gross-Up Payment, the Executive shall promptly pay to the Company the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). Notwithstanding the foregoing, in the event that the obligation to refund any amount shall be a violation of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, such obligation to refund shall be null and void. (e) To the extent that the applicable regulations under Code Section 280G permits a later recalculation by the Company, or requires a later recalculation, of whether the Payments are subject to the Excise Tax, the provisions of this Section 15 shall again be applied based upon such recalculation.

Excise Tax. (ia) If Anything in this Agreement to the contrary notwithstanding, if it is shall be determined that any amount, right payment or distribution to the Employee or for the Employee’s benefit (whether paid or payable (or otherwise provided distributed or to be provideddistributable) pursuant to the Executive by the Company or any terms of its affiliates under this Agreement or any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), otherwise (collectively, the “PaymentsPayment”), ) would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), be subject to the excise tax imposed by Section 4999 of the Code, as amended from time to time Internal Revenue Code (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive Employee shall be entitled to receive from Choice an additional payment from (the Company (a “Gross-Up Payment”) in an amount such that, after payment that the net amount of the Payment and the Gross-Up Payment retained by the Executive Employee after the calculation and deduction of all taxes Excise Taxes (including any interest or penalties imposed with respect to such taxes)) on the Payment and all federal, includingstate and local income tax, without limitation, any income and employment taxes tax and Excise Tax (including any interest or penalties imposed upon with respect to such taxes) on the Gross-Up Payment provided for in this Section, and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment shall be equal to the Excise Tax imposed upon the Payments.Payment; (iiib) All determinations required to be made under this Section 10(d)Section, including whether and when a the Gross-Up Payment or a Reduction is required, required and the amount of such Gross-Up Payment or Reduction Payment, and the assumptions to be utilized in arriving at such determination, determinations shall be made by an independent, nationally recognized accounting firm mutually acceptable to Accountants which Choice shall request provide the Company Employee and the Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply Choice with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations with respect to both the Company and Executive following any determination that a Reduction or such Gross-Up Payment at the time the Employee is necessaryentitled to receive the Payment. For the purposes of this Section, the “Accountants” shall mean Choice’s independent certified public accountants. All fees and expenses of the Auditor Accountants shall be paid borne solely by Choice. For the Company. Any Gross-Up Paymentpurposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as determined pursuant to this “parachute payments” within the meaning of Section 10(d)280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be paid by the Company treated as subject to the Executive within five (5) days Excise Tax, unless and except to the extent that in the opinion of the receipt Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4) of the Auditor’s determination. All determinations made by Code) in excess of the Auditor shall be binding upon the Company and the Executive“base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate for purposes of determining the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by Employee shall be deemed to pay Federal income taxes at the Internal Revenue Service (or other highest applicable taxing authority) after taking into account any additional interest and penalties (marginal rate of Federal income taxation for the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over calendar year in which the Gross-Up Payment initially is to be made and to pay any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to the Executive or limitations on deductions based upon the amount of the Payments after the ReductionEmployee’s adjusted gross income); and to have otherwise allowable deductions for Federal, as applicable, within five (5) days state and local income tax purposes at least equal to those disallowed because of the receipt inclusion of the Auditor’s recalculation the Gross-Up Payment in the Employee’s adjusted gross income. Any Gross-Up Payment with respect to any Payment shall be paid by Choice at the time the Employee is entitled to receive the Payment. Any determination by the Accountants shall be binding upon Choice and the Employee. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount less than Choice should have paid pursuant to this Section (the “Underpayment’). In the event that Choice exhausts its remedies and the Employee is required to make a payment of any Excise Tax, the Underpayment shall be promptly paid by Choice to or for the Employee’s benefit.

Excise Tax. (i) If it is determined that any amount, right or benefit paid or payable (or otherwise provided or to be provided) to the Executive by the Company or any of its affiliates under this Agreement or any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), (collectively, the “Payments”"PAYMENTS"), would constitute an “"excess parachute payment” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”"CODE"), subject to the excise tax imposed by Section 4999 of the Code, as amended from time to time (the “Excise Tax”"EXCISE TAX"), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “"excess parachute payment,” " then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”"REDUCTION") to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “"excess parachute payment,” " then the Executive shall be entitled to receive an additional payment from the Company (a “Gross"GROSS-Up Payment”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 and employment taxes and 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. (iii) All determinations required to be made under this Section 10(d), including whether and when a Gross-Up Payment or a Reduction is required, the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and the Executive (the “Auditor”"AUDITOR"); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d), shall be paid by the Company to the Executive within five (5) days of the receipt of the Auditor’s 's determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s 's initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”"RECALCULATED AMOUNT") and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s 's recalculation the Gross-Up Payment.

Excise Tax. (i) If it is determined In the event that any amount, right payments or benefit paid or payable (or otherwise benefits provided or to be provided) provided by Company or Bank or their respective Affiliates to Executive or for Executive’s benefit pursuant to the Executive by the Company or any terms of its affiliates under this Agreement or any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), otherwise (collectively, the “Covered Payments”), would ) constitute an “excess parachute paymentpayments” within the meaning of Section 280G of the Internal Revenue Code of 1986(or any successor provision thereto) and would, as amended (“Code”but for this Section 24(b), be subject to the excise tax imposed by Section 4999 of the CodeCode (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, as amended from time to time (the “Excise Tax”), then prior to making the Covered Payments the Parties will, to the extent practicable and reasonable, take such action and execute such documents as may be necessary to ensure that none of the present value Covered Payments will constitute “parachute payments” within the meaning of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the CodeCode (or any successor provision thereto), and in the event (but only in the event) it is equal not practicable and reasonable to take such action and execute such documents or less than 110% it is not reasonably possible to ensure that none of the threshold at which such amount becomes an Covered Payments will constitute “excess parachute payment,payments” then within the amount meaning of Section 280G of the Payments payable to the Executive under this Agreement Code (or any successor provision thereto), then a calculation shall be made comparing (A) the Net Benefit (as defined below) to Executive of the Covered Payments after payment of the Excise Tax to (B) the Net Benefit to Executive if the Covered Payments are reduced (a “Reduction”) to the extent necessary so to avoid being subject to the Excise Tax. Only if the amount calculated under clause (A) above is less than the amount calculated under clause (B) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of such the Covered Payments payable to the Executive is subject to the Excise Tax. (ii) In . The term “Net Benefit” shall mean the event it shall be determined that the amount present value of the Covered Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that, after payment by the Executive net of all taxes (including any interest or penalties imposed with respect to such federal, state, local, foreign income, employment, and excise taxes), including, without limitation, any income and employment taxes and 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. (iii) All determinations required to be made under this Section 10(d), including whether and when a Gross-Up Payment or a Reduction is required, the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and the Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined reduction made pursuant to this Section 10(d), 24(b) shall be paid made in a manner determined by Employer that is consistent with the Company to the Executive within five (5) days requirements of Section 409A of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up PaymentCode.

Excise Tax. (i) If In the event it is shall be determined that any amountpayment, right benefit, or distribution by the Firm to or for the benefit of the Executive (whether paid or payable (or otherwise provided distributed or to be provided) distributable pursuant to the Executive by the Company or any terms of its affiliates under this Agreement or otherwise, but determined without regard to any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable additional payments required under this Section 10(d), paragraph) (collectively, the a “PaymentsPayment”), ) would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986 (the “Code”) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that, 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 employment taxes any interest and penalties imposed with respect thereto) and 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. (iii) . All determinations required to be made under this Section 10(d)paragraph, including whether and when a Gross-Up Payment or a Reduction is required, required and the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized Deloitte & Touche LLP or such other certified public accounting firm mutually reasonably acceptable to the Company and Firm as may be designated by the Executive (the “AuditorAccounting Firm”); provided that in the event a Reduction is determined to be required, the Executive may determine ) which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations both to both Lazard and the Company and Executive following any determination within 15 business days of the receipt of notice from the Executive that there has been a Reduction Payment, or Gross-Up Payment such earlier time as is necessaryrequested by Lazard. All fees and expenses of the Auditor Accounting Firm shall be paid borne solely by the CompanyLazard. Any Gross-Up Payment, as determined pursuant to this Section 10(d), Payment shall be paid by the Company Lazard to the Executive within five (5) days of the later of (i) the due date for the payment of any Excise Tax, and (ii) the receipt of the AuditorAccounting Firm’s determination. All determinations made Any determination by the Auditor Accounting Firm shall be binding upon the Company Lazard and the Executive; provided . 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 if, notwithstanding Gross-Up Payments which will not have been made by Lazard should have been made (“Underpayment”) or that Gross-Up Payments which were made by Lazard should not have been made (“Overpayment”). In the Auditor’s initial determinationevent that there occurs an Underpayment and the Executive thereafter is required to make a payment of any Excise Tax, the Internal Revenue Service (Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Lazard to or other applicable taxing authority) determines for the benefit of the Executive. In the event that there occurs an additional Excise Tax is due Overpayment and the Executive becomes entitled to receive any refund with respect to the PaymentsExcise Tax, then the Auditor Executive shall recalculate promptly pay to Lazard the amount of the Gross-Up Payment such refund (together with any interest paid or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other credited thereon after taxes applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Paymentthereto).

Excise Tax. (ia) If it is determined In the event that the Executive shall become entitled to payments and/or benefits provided by this Agreement or any amount, right or benefit paid or payable other amounts in the “nature of compensation” (or otherwise provided or to be provided) whether pursuant to the Executive by the Company or any terms of its affiliates under this Agreement or any other plan, program arrangement or arrangement under which Executive participates agreement with the Company, any person whose actions result in a change of ownership or is a party, other than amounts payable under this effective control covered by Section 10(d), (collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G 280G(b)(2) of the Internal Revenue Code of 1986, as amended (“Code”) or any person affiliated with the Company or such person) as a result of a Change in Control (collectively the “Company Payments”), and if such Company Payments will be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code, as amended from time to time Code (the “Excise Tax”and any similar tax that may hereafter be imposed by any taxing authority), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable Company shall pay to the Executive under this Agreement shall be reduced (a “Reduction”at the time specified in Section 5(e) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive hereof an additional payment from amount (the Company (a “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Company Payments and any U.S. federal, state, and local income or payroll tax upon the Gross-Up Payment provided for by this Section 5(a), but before deduction for any U.S. federal, state, and local income or payroll tax on the Company Payments, shall be equal to the Company Payments. (b) Notwithstanding the foregoing provisions of Section 5(a) to the contrary, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but the Company Payments do not exceed 110% of the greatest amount (the “Reduced Amount”) that could be paid to the Executive such that the receipt of the Company Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive and the Company Payments, in the aggregate, shall be reduced to an amount such thatthat is one dollar ($1) less than the Reduced Amount; provided, after payment however, that the reduction shall occur only if the reduced Company Payments received by the Executive of all taxes (including any interest or penalties imposed after taking into account further reductions for applicable federal, state and local income, social security and other taxes) would be greater than the unreduced Company Payments to be received by the Executive minus (i) the Excise Tax payable with respect to such taxes)Company Payments and (ii) all applicable federal, includingstate and local income, without limitationsocial security and other taxes on such Company Payments. If the Reduced Amount is to be effective, the Company Payments shall be reduced in the following order: (A) any income cash severance based on a multiple of annual base salary or bonus, (B) any other cash amounts payable to the Executive, (C) any benefits valued as “parachute payments,” (D) acceleration of vesting of any stock option or similar awards for which the exercise price exceeds the then fair market value, and employment taxes (E) acceleration of vesting of any equity not covered by clause (D) above. In the event that the Internal Revenue Service or court ultimately makes a determination that the “excess parachute payments” plus the “base amount” is an amount other than as determined initially, an appropriate adjustment shall be made with regard to the Gross-Up Payment or Reduced Amount, as applicable, to reflect the final determination and the resulting impact on whether this Section 5(b) applies. (c) For purposes of determining whether any of the Company Payments will be subject to the Excise Tax imposed and the amount of such Excise Tax, (x) the Company Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of the Company’s independent certified public accountants appointed prior to any change in ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel selected by such accountants (the “Accountants”) such Company Payments (in whole or in part) either do not constitute “parachute payments,” including giving effect to the recalculation of stock options in accordance with Treasury Regulation Section 1.280G-1 Q/A33, represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the “base amount” or are otherwise not subject to the Excise Tax, and (y) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. All determinations hereunder shall be made by the Accountants which shall provide detailed supporting calculations both to the Company and the Executive at such time as it is requested by the Company or the Executive. The determination of the Accountants, subject to the adjustments provided below, shall be final and binding upon the Company and the Executive. (d) For purposes of determining the amount of the Gross-Up Payment, the Executive’s marginal blended actual rates of federal, state and local income taxation in the calendar year in which the change in ownership or effective control that subjects the Executive retains an to the Excise Tax occurs shall be used. In the event that the Excise Tax is subsequently determined by the Accountants to be less than the amount taken into account hereunder at the time the Gross-Up Payment is made, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the prior Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment equal attributable to the Excise Tax and U.S. federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax or a U.S. federal, state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event that any portion of the Gross-Up Payment to be refunded to the Company has been paid to any U.S. federal, state and local tax authority, repayment thereof (and related amounts) shall not be required until actual refund or credit of such portion has been made to the Executive, and interest payable to the Company shall not exceed the interest received or credited to the Executive by such tax authority for the period it held such portion. The Executive and the Company shall mutually agree upon the Paymentscourse of action to be pursued (and the method of allocating the expense thereof) if the Executive’s claim for refund or credit is denied. In the event that the Excise Tax is later determined by the Accountants or the Internal Revenue Service (or other taxing authority) to exceed the amount taken into account hereunder at the time the Gross-Up Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest or penalties payable with respect to such excess) promptly after the amount of such excess is finally determined. (iiie) All determinations required to be made under this Section 10(d), including whether and when a The Gross-Up Payment or a Reduction is requiredportion thereof provided for in Section 5(d) above shall be paid not later than the sixtieth (60th) day following an event occurring which subjects the Executive to the Excise Tax; provided, however, that if the amount of such Gross-Up Payment or Reduction and portion thereof cannot be finally determined on or before such day, the assumptions to be utilized in arriving at such determination, Company shall be made by an independent, nationally recognized accounting firm mutually acceptable pay to the Company Executive on such day an estimate, as determined in good faith by the Accountants, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to Section 5(d) above, as soon as the amount thereof can reasonably be determined, but in no event later than the ninetieth (90th) day after the occurrence of the event subjecting the Executive (to the “Auditor”Excise Tax. Subject to Sections 5(d) and 5(i); provided that , in the event a Reduction is that the amount of the estimated payments exceeds the amount subsequently determined to be requiredhave been due, the Executive may determine which Payments such excess shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that constitute a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d), shall be paid loan by the Company to the Executive within five Executive, payable on the fifth (55th) days day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the receipt Code). (f) In the event of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, any controversy with the Internal Revenue Service (or other applicable taxing authority) determines that an additional with regard to the Excise Tax, the Executive shall permit the Company to control issues related to the Excise Tax is due with respect to (at its expense), provided that such issues do not potentially materially adversely affect the PaymentsExecutive, then but the Auditor Executive shall recalculate control any other issues. In the amount of event the Gross-Up Payment or Reduction Amountissues are interrelated, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) Executive and the Company shall pay in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree the Executive shall make the final determination with regard to the issues. In the event of any conference with any taxing authority as to the Excise Tax or associated income taxes, the Executive shall permit the representative of the Company to accompany the Executive, and the Executive and the Executive’s representative shall cooperate with the Company and its representative. (g) The Company shall be responsible for all charges of the Accountants. (h) The Company and the Executive shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax. (i) Nothing in this Section 5 is intended to violate the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and to the extent that any advance or repayment obligation hereunder would do so, such obligation shall be modified so as to make the advance a nonrefundable payment to the Executive and the excess repayment obligation null and void. (j) The provisions of this Section 5 shall survive the Recalculated Amount over the Gross-Up Payment initially paid Executive’s Termination of Employment for any reason and any amount payable under this Section 5 shall be subject to the Executive or the amount provisions of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up PaymentSection 21(b).

Excise Tax. (i) If it is determined a. In the event that any amount, right payments or benefit paid or payable (or otherwise benefits provided or to be provided) provided by Company or Bank or their respective Affiliates to Executive or for Executive’s benefit pursuant to the Executive by the Company or any terms of its affiliates under this Agreement or any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), otherwise (collectively, the “Covered Payments”), would ) constitute an “excess parachute paymentpayments” within the meaning of Section 280G of the Internal Revenue Code of 1986(or any successor provision thereto) and would, as amended (“Code”but for this Section 24(b), be subject to the excise tax imposed by Section 4999 of the CodeCode (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, as amended from time to time (the “Excise Tax”), then prior to making the Covered Payments the Parties will, to the extent practicable and reasonable, take such action and execute such documents as may be necessary to ensure that none of the present value Covered Payments will constitute “parachute payments” within the meaning of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the CodeCode (or any successor provision thereto), and in the event (but only in the event) it is equal not practicable and reasonable to take such action and execute such documents or it is not reasonably possible to ensure that none of the Covered Payments will constitute “parachute payments” within the meaning of Section 280G of the Code (or any successor provision thereto), then a calculation shall be made comparing (A) the Net Benefit (as defined below) to Executive of the Covered Payments after payment of the Excise Tax to (B) the Net Benefit to Executive if the Covered Payments are reduced to the minimum extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under clause (A) above is less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of calculated under clause (B) above will the Covered Payments payable be reduced to the Executive under this Agreement shall be reduced (a “Reduction”) to the minimum extent necessary so to ensure that no portion of such the Covered Payments payable to the Executive is subject to the Excise Tax. (ii) In . The term “Net Benefit” shall mean the event it shall be determined that the amount present value of the Covered Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that, after payment by the Executive net of all taxes (including any interest or penalties imposed with respect to such federal, state, local, foreign income, employment, and excise taxes), including, without limitation, any income and employment taxes and 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. (iii) All determinations required to be made under this Section 10(d), including whether and when a Gross-Up Payment or a Reduction is required, the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and the Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined reduction made pursuant to this Section 10(d), 24(b) shall be paid made in a manner determined by Employer that is consistent with the Company to the Executive within five (5) days requirements of Section 409A of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up PaymentCode.

Excise Tax. (i) If In the event it is shall be determined that any amountpayment, right benefit, or distribution by the Firm to or for the benefit of the Executive (whether paid or payable (or otherwise provided distributed or to be provided) distributable pursuant to the Executive by the Company terms of this Agreement (including, without limitation, this Schedule I) or otherwise, but determined without regard to any of its affiliates additional payments required under this Agreement or any other plan, program or arrangement under which Executive participates or is paragraph) (a party, other than amounts payable under this Section 10(d), (collectively, the “PaymentsPayment”), ) would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), be subject to the excise tax imposed by Section 4999 of the CodeCode (or any similar provision of state, local or foreign law) 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 amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that, 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 employment taxes any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, but excluding any income taxes and penalties imposed pursuant to Section 409A of the Code, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (iii) . The Firm’s obligation to make Gross-Up Payments under this paragraph 5 shall not be conditioned upon the Executive’s termination of employment. All determinations required to be made under this Section 10(d)paragraph, including whether and when a Gross-Up Payment or a Reduction is required, required and the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized Deloitte & Touche LLP or such other certified public accounting firm mutually reasonably acceptable to the Company and Firm as may be designated by the Executive (the “AuditorAccounting Firm”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations both to both Lazard and the Company and Executive following any determination within fifteen (15) business days after the receipt of notice from the Executive that there has been a Reduction Payment, or Gross-Up Payment such earlier time as is necessaryrequested by Lazard. All fees and expenses of the Auditor Accounting Firm shall be borne solely by the Firm. Any Gross-Up Payment shall be paid by the CompanyFirm to the Executive within five days after the later of (i) the due date for the payment of any Excise Tax, and (ii) the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall, absent manifest error, be binding upon the Firm and the Executive. As a result of the uncertainty in the application of Sections 4999 and 280G of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments should have been made by the Firm but were not made (“Underpayment”) or that Gross-Up Payments which were made by the Firm should not have been made (“Overpayment”). In the event that there occurs an Underpayment and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Firm to or for the benefit of the Executive. In the event that there occurs an Overpayment and the Executive becomes entitled to receive any refund with respect to the Excise Tax, the Executive shall promptly pay to the Firm the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). Any Gross-Up PaymentPayment (including any Underpayment), as determined pursuant to this Section 10(d)paragraph 5, shall be paid by the Company Firm to the Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executiveas provided above; provided that ifthat, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment shall in all events be paid no later than the end of the Executive’s taxable year next following the Executive’s taxable year in which the Excise Tax (and any income or Reduction Amount, if applicable, based upon the determinations made by other related taxes or interest or penalties thereon) on a Payment is remitted to the Internal Revenue Service (or any other applicable taxing authority or, in the case of amounts relating to a claim from the Internal Revenue Service or another tax authority that does not result in the remittance of any federal, state, local and foreign income, excise, social security and other taxes, the calendar year in which the claim is finally settled or otherwise resolved. Notwithstanding any other provision of this paragraph 5, the Firm may, in its sole discretion, to comply with any tax withholding requirements, withhold and pay over to the Internal Revenue Service or any other applicable taxing authority) after taking into account any additional interest and penalties (, for the “Recalculated Amount”) and the Company shall pay to the Executive the excess benefit of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive Executive, all or the amount any portion of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the any Gross-Up Payment, and the Executive hereby consents to such withholding.

Excise Tax. (ia) If it is determined The Executive is, or, if applicable, the Executive’s dependents, heirs or beneficiaries are, responsible for covering any excise taxes incurred by the Executive pursuant to Section 4999 (and any successor provision) of the Code with respect to any payments received by the Executive upon termination in connection with a Change in Control, and the Company has no responsibility for such excise taxes, or any gross up related thereto. (b) Notwithstanding any other provisions of this Agreement to the contrary, in the event that any amount, right payments or benefit paid or payable (or otherwise provided benefits received or to be provided) to received by the Executive by in connection with the Executive’s employment with the Company (or any of its affiliates under this Agreement or any other plan, program or arrangement under which termination thereof) would subject the Executive participates or is a party, other than amounts payable under this Section 10(d), (collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), subject to the excise tax imposed by under Section 4999 of the Code, as amended from time to time Code (the “Excise Tax”), and if the present value of net-after tax amount (taking into account all applicable taxes payable by the Executive, including any Excise Tax) that the Executive would receive with respect to such Payments (calculated in a manner consistent with that set forth in payments or benefits does not exceed the applicable regulations promulgated under Section 280G of net-after tax amount the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then Executive would receive if the amount of such payments and benefits were reduced to the Payments maximum amount which could otherwise be payable to the Executive under this Agreement shall be reduced (a “Reduction”) without the imposition of the Excise Tax, then, to the extent necessary so to eliminate the imposition of the Excise Tax, (i) such cash payments and benefits shall first be reduced (if necessary, to zero) and (ii) all other non-cash payments and benefits shall next be reduced. Cash amounts payable latest in time shall be reduced first to the extent that no portion such reduction results in a greater level of such Payments aggregate value to become payable to the Executive Executive, and no payment shall be altered in violation of Code Section 409A. (c) The determination by the Company of whether any reduction in such payments or benefits to be provided under this Agreement or otherwise is subject required pursuant to the Excise Tax. (ii) In preceding sentence will be confirmed at the event it shall be determined that the amount expense of the Payments payable to Company by independent accountants or compensation or benefits consultants selected by the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then Company, and the Executive shall have the right to review such determination. The fact that the Executive’s right to payments or benefits may be entitled to receive an additional payment from reduced by reason of the Company (a “Gross-Up Payment”) limitations contained in an amount such that, after payment by this Section 6 will not of itself limit or otherwise affect any other rights of the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes and 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. (iii) All determinations required to be made under this Section 10(d), including whether and when a Gross-Up Payment or a Reduction is required, the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and the Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined other than pursuant to this Section 10(d), shall be paid by the Company to the Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up PaymentAgreement.

Excise Tax. (ia) If it is determined To the extent that any amount, right payment or distribution to or for the benefit paid or payable (or otherwise provided or to be provided) of Executive pursuant to the Executive by the Company or any terms of its affiliates under this Agreement or any other plan, program arrangement or arrangement under which Executive participates agreement with the Company, any of its affiliated companies, any person whose actions result in a change of ownership or is a partyeffective control covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person, other than amounts whether paid or payable under or distributed or distributable pursuant to the terms of this Section 10(d), Agreement or otherwise (collectively, the “Payments”), ) would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code, as amended from time then the Company shall reduce the payments to time the amount that is (after taking into account federal, state, local and social security taxes at the “Excise Tax”)maximum marginal rates, and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under including any excise taxes imposed by Section 280G 4999 of the Code) is equal to or one dollar less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the that would subject Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (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 and employment taxes and 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.“Safe Harbor Cap”) if, and only if, such reduction would result in Executive receiving a higher net after-tax amount. Unless Executive shall have given prior written notice specifying a different order to the Company to effectuate the Safe Harbor Cap, the Payments to be reduced hereunder will be determined in a manner which has the least economic cost to Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when the Payment would have been made to Executive until the reduction specified herein is achieved. Executive’s right to specify the order of reduction of the Payments shall apply only to the extent that it does not directly or indirectly alter the time or method of payment of any amount that is deferred compensation subject to (and not exempt from) Section 409A. (iiib) All determinations required to be made under this Section 10(d)4, including whether and when a Gross-Up Payment or a Reduction the Safe Harbor Cap is required, required and the amount of such Gross-Up Payment or Reduction the reduction of the Payments pursuant to the Safe Harbor Cap and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized a public accounting firm mutually acceptable that is retained by the Company as of the date immediately prior to the Change in Control (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the receipt of notice from the Company or Executive that there has been a Payment, or such earlier time as is requested by the Company (collectively, the “AuditorDetermination”); provided that in . In the event a Reduction that the Accounting Firm is determined to be requiredserving as accountant or auditor for the individual, entity or group effecting the Change in Control, Executive may determine appoint another nationally recognized public accounting firm to make the determinations required hereunder (which Payments accounting firm shall then be reduced in order referred to comply with as the provisions of this Section 10(dAccounting Firm hereunder). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor Accounting Firm shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d), shall be paid borne solely by the Company to and the Executive within five (5) days Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of the receipt of the Auditor’s determinationservices hereunder. All determinations made The Determination by the Auditor Accounting Firm shall be binding upon the Company and Executive. Executive shall cooperate, to the Executive; provided that ifextent his reasonable out-of pocket expenses are reimbursed by the Company, notwithstanding with any reasonable requests by the Auditor’s initial determination, Company in connection with any contests or disputes with the Internal Revenue Service (or other applicable taxing authority) determines that an additional in connection with the Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up PaymentTax.

Excise Tax. (ia) If Anything in this Agreement to the contrary notwithstanding, in the event it is shall be determined that any amountpayment, right award, benefit or distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries to or for the benefit paid or payable of Executive (or otherwise provided or to be provided) whether pursuant to the Executive by the Company or any terms of its affiliates under this Agreement or otherwise, but determined without regard to any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable additional payments required under this Section 10(d), 14) (collectively, the a “PaymentsPayment”), ) would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), be subject to the excise tax imposed by Section 4999 of the CodeCode or any corresponding provisions of state or local tax law, as amended from time or any interest or penalties are incurred by Executive with respect to time such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that, that after payment by the Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of from the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments. , and (iiiii) All determinations required the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to be made under this Section 10(dthe Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation), including whether and when . The payment of a Gross-Up Payment or under this Section 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, if it shall be determined that Executive is entitled to a Reduction is required, the amount of such Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment or Reduction shall be made to Executive and the assumptions amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be utilized in arriving at such determinationpaid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by an independent, nationally recognized accounting firm mutually acceptable reducing the cash payments under Section 3. For purposes of reducing the payments to the Company Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the Executive (reduction of the “Auditor”); provided that amounts payable under this Agreement would not result in a reduction of the event a Reduction is determined Payments to be requiredthe Safe Harbor Amount, the Executive may determine which Payments no amounts payable under this Agreement shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d14(a), shall be paid by the Company to the Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Payment.

Excise Tax. (i) If it is determined that any amount, right or benefit benefits paid or payable (distributed to, or otherwise provided or realized by, Employee pursuant to be provided) to the Executive by the Company or any of its affiliates under this Agreement or Agreement, together with any other planamounts or value otherwise paid or distributed to Employee by Glowpoint (e.g., program the lapsing of restrictions on Restricted Stock) in connection with a Change in Control or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), Corporate Transaction (collectively, the “"280G Payments”"), would constitute be an “"excess parachute payment” within the meaning of " as defined in Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), and would thereby subject Employee to the excise tax imposed by under Section 4999 of the Code, as amended from time to time Code or any similar tax (the “"Excise Tax”"), and the present value of then Glowpoint shall make Employee whole for any additional taxes or penalties applicable to such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject due to the Excise Tax. Tax by making a gross-up payment to Employee (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “"Gross-Up Payment”) in an "), such that the total amount such thatof 280G Payments, after payment by the Executive net of all applicable state, federal and local income taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any the Excise Tax), actually received by Employee is equal to those 280G Payments calculated as if only normally applicable state, federal and local income taxes, and employment taxes and not the Excise Tax imposed upon the Gross-Up PaymentTax, the Executive retains an amount of had applied; provided, the Gross-Up Payment equal shall include and cover any state, federal and local taxes that are applicable to the Excise Tax imposed upon the Payments. (iii) All determinations required to be made under this Section 10(d), including whether and when a Gross-Up Payment or a Reduction is required, the amount of such Gross-Up Payment Payment. Glowpoint’s outside auditing firm shall determine the Excise Tax and make any other calculations under this Section 3.6 within thirty (30) days following the applicable Change in Control, Corporate Transaction or Reduction other event resulting in the imposition of the Excise Tax, and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting determinations of Glowpoint's outside auditing firm mutually acceptable to the Company and the Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of under this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company 3.6 will be deemed conclusive and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees binding on Glowpoint and expenses of the Auditor shall be paid by the CompanyEmployee. Any Gross-Up Payment, as determined Payment pursuant to this Section 10(d), 3.6 shall be paid by the Company to the Executive Employee within five thirty (530) days following the completion of the receipt determinations of the AuditorGlowpoint’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Paymentoutside auditing firm under this Section 3.6.

Excise Tax. (i) If it is determined that any amount, right or benefit paid or payable (or otherwise provided or to be provided) to the Executive by the Company or any of its affiliates under this Agreement or any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), (collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), subject to the excise tax imposed by Section 4999 of the Code, as amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (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 and employment taxes and 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. (iii) All determinations required to be made under this Section 10(d), including whether and when a Gross-Up Payment or a Reduction is required, the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and the Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d), shall be paid by the Company to the Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation of the Gross-Up Payment.

Excise Tax. (ia) If Anything in this Agreement to the contrary notwithstanding, in the event it is shall be determined that any amountpayment, right award, benefit or benefit paid distribution (including, without limitation, the acceleration of any payment, award, distribution or payable (or otherwise provided or to be provided) to the Executive benefit), by the Company or any its subsidiaries to or for the benefit of its affiliates under the Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable additional payments required under this Section 10(d), 19) (collectively, the a “PaymentsPayment”), ) would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), be subject to the excise tax imposed by Section 4999 of the CodeCode or any corresponding provisions of state or local tax law, 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 amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that, that after payment by the Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of from the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a nonemployee director of the Company prior to the Effective Date (and, therefore, the Executive’s nonemployee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 19(a) shall not be conditioned upon the Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 19, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 280G of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-Up Payment shall be made to the Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to the Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 5. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 19(a). (iiib) All Subject to the provisions of Section 19(c), all determinations required to be made under this Section 10(d)19, including the determination of whether and when a Gross-Up Payment or a Reduction is required, required and of the amount of any such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determinationup Payment, shall be made by an independent, nationally recognized the Company's independent auditors or such other accounting firm mutually acceptable to agreed by the Company and the Executive parties hereto (the “AuditorAccounting Firm”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and within 15 business days after the receipt of notice from the Company that the Executive following has received a Payment, or such earlier time as is requested by the Company, provided that any determination that a Reduction or Gross-Up Payment an Excise Tax is necessary. All fees and expenses of payable by the Auditor Executive shall be paid by made on the Companybasis of substantial authority. Any The Company will promptly provide copies of such supporting calculations to the Executive. The initial Gross-Up Payment, if any, as determined pursuant to this Section 10(d19(b), shall be paid by the Company to the Executive within five (5or for the benefit of the Executive to the extent of the Company’s withholding obligation with respect to applicable taxes) days no later than the later of (i) the due date for the payment of any Excise Tax, and (ii) the receipt of the AuditorAccounting Firm’s determination. All determinations made If the Accounting Firm determines that no Excise Tax is payable by the Auditor Executive, it shall furnish the Company with a written opinion that substantial authority exists for the Executive not to report any Excise Tax on his Federal income tax return and, as a result, the Company is not required to withhold Excise Tax from payments to the Executive. The Company will promptly provide a copy of any such opinion to the Executive. Any determination by the Accounting Firm meeting the requirements of this Section 19(b) shall be binding upon the Company and the Executive; provided . 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 ifGross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), notwithstanding consistent with the Auditor’s initial determinationcalculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 19(c) and the Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company. (c) 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 as soon as practicable but not later than ten business days after the Executive receives written notice of such claim and shall apprise the Company of the nature of such claim and the date on which such Claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company (or other applicable taxing authority) determines such shorter period ending on the date that an additional Excise Tax is due any payment of taxes with respect to such claim is due). If the PaymentsCompany notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment 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 19(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and s▇▇ for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, the Company may not direct the Executive to pay the claim and s▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 19(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of Section 19(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 19(c), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the Auditor amount of such advance shall recalculate offset, to the extent thereof, the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay required to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Paymentbe paid.

Excise Tax. (ia) If In the event it is shall be determined that any amountpayment, right benefit or distribution (or combination thereof) by ▇▇▇▇▇▇ US, any of its affiliates, one or more trusts established by ▇▇▇▇▇▇ US for the benefit of its employees, or any other person or entity, to or for the benefit of Executive (whether paid or payable (or distributed or distributable pursuant to the terms of this Agreement, or otherwise provided pursuant to or to be provided) to the Executive by the Company or any reason of its affiliates under this Agreement or any other agreement, policy, plan, program or arrangement under which Executive participates arrangement, including without limitation any stock option, stock appreciation right, phantom equity awards or is similar right, or the lapse or termination of any restriction on the vesting or exercisability of any of the foregoing) (a party, other than amounts payable under this "PAYMENT") would be subject to the excise tax imposed by Section 10(d), (collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G 4999 of the Internal Revenue Code of 1986, as amended (“Code”)the "CODE") by reason of being "contingent on a change in ownership or control" of ▇▇▇▇▇▇ US, subject to the excise tax imposed by Section 4999 of the Code, as amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under within Section 280G of the CodeCode (or any successor provision thereto) is equal or any interest or penalties are incurred by Executive with respect to or less than 110% of such excise tax (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the threshold at which such amount becomes an “excess parachute payment,” "EXCISE TAX"), then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company or payments (a “Gross"GROSS-Up Payment”UP PAYMENT") in an amount such that, 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 employment taxes 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. (iiib) All Subject to the provisions of Section 4(a) hereof, all determinations required to be made under this Section 10(d)4, including whether and when a Gross-Up Payment or a Reduction is required, required and the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, a nationally recognized certified public accounting firm mutually acceptable as may be designated by ▇▇▇▇▇▇ US, and reasonably satisfactory to the Company and the Executive (the “Auditor”"ACCOUNTING FIRM"); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations both to both the Company ▇▇▇▇▇▇ US and Executive following within fifteen (15) business days of Termination Date, or such earlier time as is requested by ▇▇▇▇▇▇ US; PROVIDED that for purposes of determining the amount of any determination that a Reduction or 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 necessaryto 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 Auditor Accounting Firm shall be paid borne solely by the Company▇▇▇▇▇▇ US. Any Gross-Up Payment, as determined pursuant to this Section 10(d)4, shall be paid by the Company ▇▇▇▇▇▇ US to Executive (or to the appropriate taxing authority on Executive's behalf) when due immediately prior to the date Executive within five (5) days is required to make payment of any Excise Tax or other taxes. If the receipt of the Auditor’s determinationAccounting Firm determines that no Excise Tax is payable by Executive, it shall so indicate to Executive in writing, with an opinion that Executive has substantial authority not to report any Excise Tax on his/her federal state, local income or other tax return. All determinations made Any determination by the Auditor Accounting Firm shall be binding upon the Company ▇▇▇▇▇▇ US and the Executive; provided that if, notwithstanding the Auditor’s initial determination, Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; PROVIDED, HOWEVER, that no such determination shall eliminate or reduce ▇▇▇▇▇▇ US's obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Section 4999 of the Code (or other applicable taxing authorityany successor provision thereto) determines and the possibility of similar uncertainty regarding state or local tax law at the time of any determination by the Accounting Firm hereunder, it is possible that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment determined by the Accounting Firm to be due to (or Reduction Amounton behalf of) Executive was lower than the amount actually due ("UNDERPAYMENT"). In the event that ▇▇▇▇▇▇ US exhausts its remedies pursuant to Section 4(c) and Executive thereafter is required to make a payment of any Excise Tax, if applicablethe Accounting Firm shall determine the amount of the Underpayment that has occurred as promptly as possible and notify ▇▇▇▇▇▇ US and Executive of such calculations, based upon and any such Underpayment (including the determinations made Gross-Up Payment to Executive) shall be promptly paid by ▇▇▇▇▇▇ US to or for the benefit of Executive within five (5) business days after receipt of such determination and calculations. (c) Executive shall notify ▇▇▇▇▇▇ US in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by ▇▇▇▇▇▇ US of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing of such claim and shall apprise ▇▇▇▇▇▇ US of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives such notice to ▇▇▇▇▇▇ US (or other applicable taxing authoritysuch shorter period ending on the date that any payment of taxes with respect to such claim is due). If ▇▇▇▇▇▇ US notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall (i) after taking into account give ▇▇▇▇▇▇ US any information which is in Executive's possession reasonably requested by ▇▇▇▇▇▇ US relating to such claim, (ii) take such action in connection with contesting such claim as ▇▇▇▇▇▇ US 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 ▇▇▇▇▇▇ US, (iii) cooperate with ▇▇▇▇▇▇ US in good faith in order to effectively contest such claim, and (iv) permit ▇▇▇▇▇▇ US to participate in any proceedings relating to such claim; PROVIDED, HOWEVER, that ▇▇▇▇▇▇ US 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 4(c), ▇▇▇▇▇▇ US 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 ▇▇▇ for 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 one or more appellate courts, as ▇▇▇▇▇▇ US shall determine; PROVIDED, FURTHER, that if ▇▇▇▇▇▇ US directs Executive to pay such claim and ▇▇▇ for a refund, ▇▇▇▇▇▇ US 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 (including the “Recalculated Amount”applicable Gross-Up Payment); PROVIDED, FURTHER, that if Executive is required to extend the statute of limitations to enable ▇▇▇▇▇▇ US to contest such claim, Executive may limit this extension solely to such contested amount. ▇▇▇▇▇▇ US's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount paid or advanced by ▇▇▇▇▇▇ US pursuant to this Section 4, Executive becomes entitled to receive any refund with respect to a Gross-Up Payment, Executive shall (subject to ▇▇▇▇▇▇ US's complying with the requirements of Section 4(c)) promptly pay to ▇▇▇▇▇▇ US 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 ▇▇▇▇▇▇ US pursuant to Section 4(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and ▇▇▇▇▇▇ US does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the Company amount of such advance shall pay offset, to the Executive extent thereof, the excess amount of the Recalculated Amount over the Gross-Up Payment initially paid required to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Paymentbe paid.

Excise Tax. (ia) If In the event it is shall be determined that any amountpayment, right benefit or distribution (or combination thereof) by Employer, any of Employer's affiliates, one or more trusts established by Employer for the benefit of its employees, or any other person or entity, to or for the benefit of Executive (whether paid or payable (or distributed or distributable pursuant to the terms of this Agreement, or otherwise provided pursuant to or to be provided) to the Executive by the Company or any reason of its affiliates under this Agreement or any other agreement, policy, plan, program or arrangement under which Executive participates arrangement, including without limitation any stock option, stock appreciation right, phantom equity awards or is similar right, or the lapse or termination of any restriction on the vesting or exercisability of any of the foregoing) (a party, other than amounts payable under this "Payment") would be subject to the excise tax imposed by Section 10(d), (collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G 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 Willis US or Willis Holdings, subject to the excise tax imposed by Section 4999 of the Code, as amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under within Section 280G of the CodeCode (or a▇▇ ▇▇▇cessor ▇▇▇▇▇sion thereto) is equal or any interest or penalties are incurred by Executive with respect to or less than 110% of such excise tax (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the "Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” "), then the Executive shall be entitled to receive an additional payment from the Company or payments (a “"Gross-Up Payment”") in an amount such that, 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 employment taxes 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. (iiib) All Subject to the provisions of Section 4(a) hereof, all determinations required to be made under this Section 10(d)4, including whether and when a Gross-Up Payment or a Reduction is required, required and the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, a nationally recognized certified public accounting firm mutually acceptable as may be designated by Employer, and reasonably satisfactory to the Company and the Executive (the “Auditor”"Accounting Firm"); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations both to both the Company Employer and Executive following within fifteen (15) business days of Termination Date, or such earlier time as is requested by Employer; provided that for purposes of determining the amount of any determination Gross-Up Payment, it is recognized that a Reduction or Executive will pay federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is necessaryto be made 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 Auditor Accounting Firm shall be paid borne solely by the CompanyEmployer. Any Gross-Up Payment, as determined pursuant to this Section 10(d)4, shall be paid by the Company Employer to Executive (or to the appropriate taxing authority on Executive's behalf) when due immediately prior to the date Executive within five (5) days is required to make payment of any Excise Tax or other taxes. If the receipt of the Auditor’s determinationAccounting Firm determines that no Excise Tax is payable by Executive, it shall so indicate to Executive in writing, with an opinion that Executive has substantial authority not to report any Excise Tax on his/her federal state, local income or other tax return. All determinations made Any determination by the Auditor Accounting Firm shall be binding upon the Company Employer and the Executive; provided that if, notwithstanding the Auditor’s initial determination, Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce Employer's obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Section 4999 of the Code (or other applicable taxing authorityany successor provision thereto) determines and the possibility of similar uncertainty regarding state or local tax law at the time of any determination by the Accounting Firm hereunder, it is possible that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment determined by the Accounting Firm to be due to (or Reduction Amounton behalf of) Executive was lower than the amount actually due ("Underpayment"). In the event that Employer exhausts its remedies pursuant to Section 4(c) and Executive thereafter is required to make a payment of any Excise Tax, if applicablethe Accounting Firm shall determine the amount of the Underpayment that has occurred as promptly as possible and notify Employer and Executive of such calculations, based upon and any such Underpayment (including the determinations made Gross-Up Payment to Executive) shall be promptly paid by Employer to or for the benefit of Executive within five (5) business days after receipt of such determination and calculations. (c) Executive shall notify Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Employer of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing of such claim and shall apprise Employer of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives such notice to Employer (or other applicable taxing authoritysuch shorter period ending on the date that any payment of taxes with respect to such claim is due). If Employer notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall (i) after taking into account give Employer any information which is in Executive's possession reasonably requested by Employer relating to such claim, (ii) take such action in connection with contesting such claim as Employer 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 Employer, (iii) cooperate with Employer in good faith in order to effectively contest such claim, and (iv) permit Employer to participate in any proceedings relating to such claim; provided, however, that Employer 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 “Recalculated Amount”) foregoing provisions of this Section 4(c), Employer 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 Company taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, ▇▇▇ Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Employer shall determine; provided, further, that if Employer directs Executive to pay such claim and sue for a refund, Employer shall pay the amount of such claim to ▇▇ecutive, 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 payment or with respect to any imputed income with respect to such payment (including the applicable Gross-Up Payment); provided, further, that if Executive is required to extend the excess statute of limitations to enable Employer to contest such claim, Executive may limit this extension solely to such contested amount. Employer's control of the Recalculated Amount over the contest shall be limited to issues with respect to which a Gross-Up Payment initially paid would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. The reimbursement of expenses incurred by Executive due to a tax contest or litigation addressing the existence or amount of an Excise Tax liability shall be reimbursed promptly, but in no event be made later than the end of the calendar year next following the calendar year in which the taxes that are subject of the contest or litigation are remitted to the Executive taxing authority (or if no taxes are remitted as a result of such audit or litigation, the amount end of the Payments calendar year next following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation). In addition, without extending the time of any obligation in this Section 4, any tax Gross-Up Payment shall be made no later than the end of the calendar year next following the calendar year in which the Executive remits the related tax. (d) If, after the Reductionreceipt by Executive of an amount paid by Employer pursuant to this Section 4, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Executive becomes entitled to receive any refund with respect to a Gross-Up Payment, Executive shall (subject to Employer's complying with the requirements of Section 4(c)) promptly pay to Employer the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). Notwithstanding the foregoing, in the event that the obligation to refund any amount shall be a violation of the Sarbanes-Oxley Act of 2002, such obligation to refund shall be null ▇▇▇ ▇▇▇▇. (e) To the extent that the applicable regulations under Code Section 280G permits a later recalculation by the Employer, or requires a later recalculation, of whether the Payments are subject to the Excise Tax, the provisions of this Section 4 shall again be applied based upon such recalculation.

Excise Tax. (i) If In the event that it is determined that any amount, right payment or benefit paid or payable (or otherwise provided or to be provided) to the Executive by the Company to or any for the benefit of its affiliates Employee (the "Payments"), either under this Agreement or any other planotherwise, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), will be subject to the excise tax (collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G "Excise Tax") imposed by section 4999 of the Internal Revenue Code of 1986, as amended or any successor provision (“Code”"section 4999"), subject the Company will, prior to the excise tax imposed by Section 4999 of the Code, as amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at date on which such amount becomes an “excess parachute payment,” then the any amount of the Payments Excise Tax must be paid or withheld, make an additional lump-sum payment (the "Gross-up Payment") to Employee. The Gross-up Payment will be sufficient, after giving effect to all federal, state and other taxes and charges (including interest and penalties, if any) with respect to the Gross-up Payment, to make Employee whole for all taxes (including withholding taxes) and any associated interest and penalties, imposed under or as a result of section 4999. The Gross-up Payment provided for above will be paid on the thirtieth (30th) day (or such earlier date as the Excise Tax becomes due and payable to the Executive under this Agreement shall be reduced (a “Reduction”taxing authorities) to after it has been determined that the extent necessary so that no portion of such Payments payable to the Executive is are subject to the Excise Tax, but in no event later than sixty (60) days following termination of employment of Employee. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall Employee would be entitled to receive an additional payment from the Company (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 and employment taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal Payments which would be subject to the Excise Tax imposed upon Tax, Employee may, at his option, elect to reduce the Payments he would receive to such an amount as would not be subject to the Excise Tax. To exercise this option, Employee must provide written notice (the "Cap Notice") to the Company of such election within ten (10) business days of the Termination Date and such Cap Notice must specify the manner and amount in which Employee elects to reduce the Payments. Upon receipt of the Cap Notice by the Company, Employee's election will be considered irrevocable and the Company shall have no liability whatsoever for complying with Employee's instructions contained in the Cap Notice. (iii) All determinations required to be made Determinations under this Section 10(d), including whether and when a Gross-Up Payment or a Reduction is required, the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall 3.1 will be made by an independent, nationally recognized accounting firm mutually acceptable to the Accounting Firm. The determinations of the Accounting Firm will be binding upon the Company and Employee except as the Executive determinations are established in resolution (the “Auditor”); provided that in the event including by settlement) of a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply controversy with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations Internal Revenue Service to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessaryhave been incorrect. All fees and expenses of the Auditor shall Firm will be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d), shall be paid by the Company to the Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Payment.

Excise Tax. (ia) If In the event it is shall be determined that any amountpayment, right benefit or distribution (or combination thereof) by Employer, any of Employer's affiliates, one or more trusts established by Employer for the benefit of its employees, or any other person or entity, to or for the benefit of Executive (whether paid or payable (or distributed or distributable pursuant to the terms of this Agreement, or otherwise provided pursuant to or to be provided) to the Executive by the Company or any reason of its affiliates under this Agreement or any other agreement, policy, plan, program or arrangement under which Executive participates arrangement, including without limitation any stock option, stock appreciation right, phantom equity awards or is similar right, or the lapse or termination of any restriction on the vesting or exercisability of any of the foregoing) (a party, other than amounts payable under this "Payment") would be subject to the excise tax imposed by Section 10(d), (collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G 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 ▇▇▇▇▇▇ US or ▇▇▇▇▇▇ Holdings, subject to the excise tax imposed by Section 4999 of the Code, as amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under within Section 280G of the CodeCode (or any successor provision thereto) is equal or any interest or penalties are incurred by Executive with respect to or less than 110% of such excise tax (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the "Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” "), then the Executive shall be entitled to receive an additional payment from the Company or payments (a “"Gross-Up Payment”") in an amount such that, 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 employment taxes 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. (iiib) All Subject to the provisions of Section 4(a) hereof, all determinations required to be made under this Section 10(d)4, including whether and when a Gross-Up Payment or a Reduction is required, required and the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, a nationally recognized certified public accounting firm mutually acceptable as may be designated by Employer, and reasonably satisfactory to the Company and the Executive (the “Auditor”"Accounting Firm"); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations both to both the Company Employer and Executive following within fifteen (15) business days of Termination Date, or such earlier time as is requested by Employer; provided that for purposes of determining the amount of any determination Gross-Up Payment, it is recognized that a Reduction or Executive will pay federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is necessaryto be made 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 Auditor Accounting Firm shall be paid borne solely by the CompanyEmployer. Any Gross-Up Payment, as determined pursuant to this Section 10(d)4, shall be paid by the Company Employer to Executive (or to the appropriate taxing authority on Executive's behalf) when due immediately prior to the date Executive within five (5) days is required to make payment of any Excise Tax or other taxes. If the receipt of the Auditor’s determinationAccounting Firm determines that no Excise Tax is payable by Executive, it shall so indicate to Executive in writing, with an opinion that Executive has substantial authority not to report any Excise Tax on his/her federal state, local income or other tax return. All determinations made Any determination by the Auditor Accounting Firm shall be binding upon the Company Employer and the Executive; provided that if, notwithstanding the Auditor’s initial determination, Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or <PAGE> 9 reduce Employer's obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Section 4999 of the Code (or other applicable taxing authorityany successor provision thereto) determines and the possibility of similar uncertainty regarding state or local tax law at the time of any determination by the Accounting Firm hereunder, it is possible that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment determined by the Accounting Firm to be due to (or Reduction Amounton behalf of) Executive was lower than the amount actually due ("Underpayment"). In the event that Employer exhausts its remedies pursuant to Section 4(c) and Executive thereafter is required to make a payment of any Excise Tax, if applicablethe Accounting Firm shall determine the amount of the Underpayment that has occurred as promptly as possible and notify Employer and Executive of such calculations, based upon and any such Underpayment (including the determinations made Gross-Up Payment to Executive) shall be promptly paid by Employer to or for the benefit of Executive within five (5) business days after receipt of such determination and calculations. (c) Executive shall notify Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Employer of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing of such claim and shall apprise Employer of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives such notice to Employer (or other applicable taxing authoritysuch shorter period ending on the date that any payment of taxes with respect to such claim is due). If Employer notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall (i) after taking into account give Employer any information which is in Executive's possession reasonably requested by Employer relating to such claim, (ii) take such action in connection with contesting such claim as Employer 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 Employer, (iii) cooperate with Employer in good faith in order to effectively contest such claim, and (iv) permit Employer to participate in any proceedings relating to such claim; provided, however, that Employer 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 “Recalculated Amount”) foregoing provisions of this Section 4(c), Employer 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 Company taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and ▇▇▇ for 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 one or more appellate courts, as Employer shall determine; provided, further, that if Employer directs Executive to pay such claim and ▇▇▇ for a refund, Employer shall pay the amount of such claim to Executive, 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 payment or with respect to any imputed income with respect to such payment (including the applicable Gross-Up Payment); provided, further, that if Executive is required to extend the excess statute of limitations to enable Employer to contest such claim, Executive may limit this extension solely to such contested amount. Employer's control of the Recalculated Amount over the contest shall be limited to issues with respect to which a Gross-Up Payment initially paid would be payable hereunder and <PAGE> 10 Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. The reimbursement of expenses incurred by Executive due to a tax contest or litigation addressing the existence or amount of an Excise Tax liability shall be reimbursed promptly, but in no event be made later than the end of the calendar year next following the calendar year in which the taxes that are subject of the contest or litigation are remitted to the Executive taxing authority (or if no taxes are remitted as a result of such audit or litigation, the amount end of the Payments calendar year next following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation). In addition, without extending the time of any obligation in this Section 4, any tax Gross-Up Payment shall be made no later than the end of the calendar year next following the calendar year in which the Executive remits the related tax. (d) If, after the Reductionreceipt by Executive of an amount paid by Employer pursuant to this Section 4, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Executive becomes entitled to receive any refund with respect to a Gross-Up Payment, Executive shall (subject to Employer's complying with the requirements of Section 4(c)) promptly pay to Employer the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). Notwithstanding the foregoing, in the event that the obligation to refund any amount shall be a violation of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, such obligation to refund shall be null and void. (e) To the extent that the applicable regulations under Code Section 280G permits a later recalculation by the Employer, or requires a later recalculation, of whether the Payments are subject to the Excise Tax, the provisions of this Section 4 shall again be applied based upon such recalculation.

Excise Tax. (i1) If In the event it is shall be determined that any amountpayment (other than the payment provided for in this Paragraph 13.(c)) or distribution of any type to or for the benefit of Executive, right by Company, any affiliate of Company, any person who acquires ownership or benefit paid or payable (or otherwise provided or to be provided) to the Executive by the effective control of Company or any ownership of its affiliates under this Agreement or any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), substantial portion of Company's assets (collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“the "Code”"), and the regulations thereunder) or any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), is or will be subject to the excise tax imposed by Section 4999 of the CodeCode or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as amended from time to time (the “"Excise Tax”"), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “"Gross-Up Payment”") in an amount such that, that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, including any income and tax, employment taxes and tax or Excise Tax 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 Total Payments. (iii2) All determinations that are required to be made under this Section 10(dParagraph 13.(c), including including, but not limited to, determinations as to whether and when any of the Total Payments are "parachute payments" (within the meaning of Section 280G of the Code), whether a Gross-Up Payment or a Reduction is required, the amount of such Gross-Up Payment or Reduction and amounts relevant to the assumptions to be utilized in arriving at such determinationlast sentence of this Paragraph 13.(c)(2), shall be made by an independent, nationally recognized independent accounting firm mutually acceptable to selected by Executive from among the four (4) largest accounting firms in the United States (the "Accounting Firm") (including, but not limited to, and without objection by Company and notwithstanding any potential or actual conflict of interest between Company and Executive, any such accounting firm which is then providing or has at any time in the Executive past provided services to Company and/or any subsidiaries or affiliates of Company), which shall provide its determination (the “Auditor”"Determination"); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply together with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations calculations, regarding the amount of any Gross-Up Payment and any other relevant matter, both to both the Company and Executive following by no later than ten (10) days after the date Executive's employment is terminated, if applicable, or such other time as requested by Company or by Executive if Executive reasonably believes that there is a possibility that an Excise Tax may be payable in respect of all or any determination portion of the Total Payments. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall furnish Executive and Company with an opinion reasonably acceptable to Executive and Company that no Excise Tax is payable (including the reasons therefor) and that Executive has substantial authority not to report any Excise Tax on Executive's federal income tax return. If a Reduction or Gross-Up Payment is necessarydetermined to be payable, it shall be paid to Executive within twenty (20) days after the Determination (and all accompanying calculations and other material supporting the Determination) is delivered to Company by the Accounting Firm. All Any determination by the Accounting Firm shall be binding upon Company and Executive, absent manifest error. As a result of 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 not made by Company should have been made ("Underpayment"), or that Gross-Up Payments will have been made by Company which should not have been made ("Overpayments"). In either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Underpayment, the amount of such Underpayment (together with any interest and penalties payable by Executive as a result of such Underpayment) shall be promptly paid by Company to or for the benefit of Executive. In the case of an Overpayment, Executive shall, at the direction and expense of Company, take such steps as are reasonably necessary (including the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, Company, and otherwise reasonably cooperate with Company to correct such Overpayment. The fees and expenses of the Auditor Accounting Firm shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d), shall be paid by the Company to the Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Payment.

Excise Tax. (i) If it is determined In the event that any amount, right payment or benefit paid or payable (or otherwise provided received or to be provided) received by the Executive in connection with a Change in Control or the termination of the Executive’s employment, whether such payments or benefits are received pursuant to the Executive by the Company or any terms of its affiliates under this Agreement or any other plan, program arrangement or arrangement under which Executive participates agreement with the Company, any person whose actions result in a Change in Control or is a party, other than amounts payable under this Section 10(d), any person affiliated with the Company or such person (collectively, the all such payments and benefits being hereinafter called “Total Payments”), would constitute an be subject (in whole or part), to the tax (the “excess parachute payment” within the meaning of Excise Tax”) imposed under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), subject to the excise tax imposed by Section 4999 of the Code, as amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable Company shall pay to the Executive under this Agreement shall be reduced such additional amounts (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that, after payment by as may be necessary to place the Executive in the same after-tax position as if no portion ​ ​ ​ ​ ​ /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ​ ​ Executive’s Initials ​ ​ of all taxes (including any interest or penalties imposed with respect the Total Payments had been subject to such taxes), including, without limitation, any income and employment taxes and the Excise Tax. In the event that the Excise Tax imposed upon is subsequently determined to be less than the Gross-Up Paymentamount taken into account hereunder, the Executive retains an shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment equal attributable to the Excise Tax imposed upon the Payments. such reduction (iii) All determinations required to be made under this Section 10(d), including whether and when a Gross-Up Payment or a Reduction is required, the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and the Executive (the “Auditor”); provided plus that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d), shall be paid by the Company to the Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount portion of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay attributable to the Executive the excess of the Recalculated Amount over Excise Tax and federal, state, and local income tax imposed on the Gross-Up Payment initially paid being repaid by the Executive to the Executive extent that such repayment results in a reduction in Excise Tax and/or a federal, state, or local income tax deduction) plus interest on the amount of such repayment at the Payments after the Reduction, as applicable, within five (5rate provided in Section 1274(b)(2)(B) days of the receipt Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the Auditor’s recalculation existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Excise Tax. (ia) If In the event it is shall be determined that any amountpayment, right benefit or distribution (or combination thereof) by Employer, any of Employer's affiliates, one or more trusts established by Employer for the benefit of its employees, or any other person or entity, to or for the benefit of Executive (whether paid or payable (or distributed or distributable pursuant to the terms of this Agreement, or otherwise provided pursuant to or to be provided) to the Executive by the Company or any reason of its affiliates under this Agreement or any other agreement, policy, plan, program or arrangement under which Executive participates arrangement, including without limitation any stock option, stock appreciation right, phantom equity awards or is similar right, or the lapse or termination of any restriction on the vesting or exercisability of any of the foregoing) (a party, other than amounts payable under this "Payment") would be subject to the excise tax imposed by Section 10(d), (collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G 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 ▇▇▇▇▇▇ US or ▇▇▇▇▇▇ Holdings, subject to the excise tax imposed by Section 4999 of the Code, as amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under within Section 280G of the CodeCode (or any successor provision thereto) is equal or any interest or penalties are incurred by Executive with respect to or less than 110% of such excise tax (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the "Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” "), then the Executive shall be entitled to receive an additional payment from the Company or payments (a “"Gross-Up Payment”") in an amount such that, 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 employment taxes 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. (iiib) All Subject to the provisions of Section 4(a) hereof, all determinations required to be made under this Section 10(d)4, including whether and when a Gross-Up Payment or a Reduction is required, required and the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, a nationally recognized certified public accounting firm mutually acceptable as may be designated by Employer, and reasonably satisfactory to the Company and the Executive (the “Auditor”"Accounting Firm"); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations both to both the Company Employer and Executive following within fifteen (15) business days of Termination Date, or such earlier time as is requested by Employer; provided that for purposes of determining the amount of any determination that a Reduction or 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 necessaryto 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 Auditor Accounting Firm shall be paid borne solely by the CompanyEmployer. Any Gross-Up Payment, as determined pursuant to this Section 10(d)4, shall be paid by the Company Employer to Executive (or to the appropriate taxing authority on Executive's behalf) when due immediately prior to the date Executive within five (5) days is required to make payment of any excise Tax or other taxes. If the receipt of the Auditor’s determinationAccounting Firm determines that no Excise Tax is payable by Executive, it shall so indicate to Executive in writing, with an opinion that Executive has substantial authority not to report any Excise Tax on his/her federal state, local income or other tax return. All determinations made Any determination by the Auditor Accounting Firm shall be binding upon the Company Employer and the Executive; provided that if, notwithstanding the Auditor’s initial determination, Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce Employer's obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Section 4999 of the Code (or other applicable taxing authorityany successor provision thereto) determines and the possibility of similar uncertainty regarding state or local tax law at the time of any determination by the Accounting Firm hereunder, it is possible that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment determined by the Accounting Firm to be due to (or Reduction Amounton behalf of) Executive was lower than the amount actually due ("Underpayment"). In the event that the Employer exhausts its remedies pursuant to Section 4(c) and Executive thereafter is required to make a payment of any Excise Tax, if applicablethe Accounting Firm shall determine the amount of the Underpayment that has occurred as promptly as possible and notify Employer and Executive of such calculations, based upon and any such Underpayment (including the determinations made Gross-Up Payment to Executive) shall be promptly paid by Employer to or for the benefit of Executive within five (5) business days after receipt of such determination and calculations. (c) Executive shall notify Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Employer of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing of such claim and shall apprise Employer of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives such notice to Employer (or other applicable taxing authoritysuch shorter period ending on the date that any payment of taxes with respect to such claim is due). If Employer notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall (i) after taking into account give Employer any information which is in Executive's possession reasonably requested by Employer relating to such claim, (ii) take such action in connection with contesting such claim as Employer 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 Employer, (iii) cooperate with Employer in good faith in order to effectively contest such claim, and (iv) permit Employer to participate in any proceedings relating to such claim; provided, however, that Employer 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 “Recalculated Amount”) foregoing provisions of this Section 4(c), Employer 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 Company taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and ▇▇▇ for 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 one or more appellate courts, as Employer shall determine; provided, further, that if Employer directs Executive to pay such claim and ▇▇▇ for a refund, Employer shall pay the amount of such claim to Executive, 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 payment or with respect to any imputed income with respect to such payment (including the applicable Gross-Up Payment); provided, further, that if Executive is required to extend the excess statute of limitations to enable Employer to contest such claim, Executive may limit this extension solely to such contested amount. Employer's control of the Recalculated Amount over the contest shall be limited to issues with respect to which a Gross-Up Payment initially paid would be payable hereunder and Executive shall be entitled to settle or contest, as the Executive case may be, any other issue raised by the Internal Revenue Service or the amount of the Payments any other taxing authority. (d) If, after the Reductionreceipt by Executive of an amount paid by Employer pursuant to this Section 4, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Executive becomes entitled to receive any refund with respect to a Gross-Up Payment, Executive shall (subject to Employer's complying with the requirements of Section 4(c)) promptly pay to Employer the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto).

Excise Tax. (ia) If it is determined In the event that any amount, right or benefit paid or payable (or otherwise the severance and other benefits provided or to be provided) to the Executive by the Company or any of its affiliates under in this Agreement or any other plan, program or arrangement otherwise payable to Executive constitute “parachute payments” under which Executive participates or is a party, other than amounts payable under this Section 10(d), (collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), ) and would be subject to the excise tax imposed by Section 4999 of the Code, then, except as amended from time provided by Section 10(b) below: Executive’s benefits shall be either (i) delivered in full, or (ii) delivered as to time such lesser extent which would result in no portion of such benefits being subject to the excise tax, whichever of the foregoing amounts results in the receipt by Executive on an after-tax basis, of the greatest amount of benefits. (b) In addition, in the “Excise Tax”)event a Change in Control occurs, and Executive’s employment is terminated by the present value Company without Cause, or Executive resigns for Good Reason, prior to the first anniversary of such Payments the Effective Date, and it is determined by the Accountants (calculated as defined below) or the Internal Revenue Service that the payments or benefits provided for in a manner consistent with that set forth in this Agreement or otherwise constitute “parachute payments” within the applicable regulations promulgated under meaning of Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall Code and will be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. excise tax imposed by Section 4999 of the Code, then Executive will receive, as soon as the calculations required under Section 10(c) are complete and upon any notification from the Internal Revenue Service of its determination that payments or benefits hereunder constitute excess parachute payments, (i) payments from the Company sufficient to pay such excise tax (plus any interest and penalties), and (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company sufficient to pay the federal and state income and employment taxes and additional excise taxes (a plus any interest and penalties) arising from the payments made to Executive by the Company pursuant to this sentence (collectively the “Gross-Up up Payment”) ). Notwithstanding the foregoing however, the Company shall only be obligated to make such a Gross-up Payment in an amount necessary, if any, such thatthat the excess of (1) (A) any severance and/or First Year Severance Payment paid or payable to Executive pursuant to Section 8(a) and (b), after payment (B) any (i) Base Salary paid up until the date of termination, (ii) the Signing Bonus, and (iii) the value of Restricted Stock vested prior to, and including, the date of the Change in Control (measured by the Executive closing price of the Company’s common stock as of the applicable vesting date), and (C) the value of vested Performance Units (measured by the closing price of the Company’s common stock as of the applicable vesting date) settled prior to, and including, the date of the Change in Control, and (D) the Gross-up Payment, over (2) all applicable income, employment and excise taxes (including any interest or penalties imposed with respect to such taxesand penalties), includingwhether payable in connection with such Change in Control, without limitation, any income and employment taxes and Excise Tax imposed upon the Gross-Up Paymentup Payment or otherwise, equals $1,800,000. (c) Unless Executive and the Company agree otherwise in writing, the Executive retains an determination of Executive’s excise tax liability and amount of the Gross-Up up Payment equal for purposes of subsection 9(b) above, if any, will be made in writing by the independent auditors who are primarily used by the Company immediately prior to the Excise Tax imposed upon Change in Control (the Payments. (iii) All determinations “Accountants”). For purposes of making the calculations required by this Section 10, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. Executive and the Company agree to be made furnish such information and documents as the Accountants may reasonably request in order to make a determination under this Section 10(d), including whether and when a Gross-Up Payment or a Reduction is required, 10. The Company will bear all costs the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and the Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, the Accountants and/or Executive may determine which Payments shall be reduced reasonably incur in order to comply connection with the provisions of any calculations contemplated by this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d), shall be paid by the Company to the Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Payment10.

Excise Tax. (ia) If it is determined In the event that the Executive shall become entitled to payments and/or benefits provided by this Agreement or any amount, right or benefit paid or payable other amounts in the “nature of compensation” (or otherwise provided or to be provided) whether pursuant to the Executive by the Company or any terms of its affiliates under this Agreement or any other plan, program arrangement or arrangement under which Executive participates agreement with the Company, any person whose actions result in a change of ownership or is a party, other than amounts payable under this effective control covered by Section 10(d), (collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G 280G(b)(2) of the Internal Revenue Code of 1986, as amended (“Code”) or any person affiliated with the Company or such person) as a result of a Change in Control (collectively the “Company Payments”), and if such Company Payments will be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code, as amended from time to time Code (the “Excise Tax”and any similar tax that may hereafter be imposed by any taxing authority), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable Company shall pay to the Executive under this Agreement shall be reduced at the time specified in Section 5(e) hereof anadditional amount (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Company Payments and any U.S. federal, state, and local income or payroll tax upon the Gross-Up Payment provided for by this Section 5(a), but before deduction for any U.S. federal, state, and local income or payroll tax on the Company Payments, shall be equal to the Company Payments. (b) Notwithstanding the foregoing provisions of Section 5(a) to the contrary, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but the Company Payments do not exceed 110% of the greatest amount (the “Reduced Amount”) that could be paid to the Executive such that the receipt of the Company Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive and the Company Payments, in the aggregate, shall be reduced to an amount such thatthat is one dollar ($1) less than the Reduced Amount; provided, after payment however, that the reduction shall occur only if the reduced Company Payments received by the Executive of all taxes (including any interest or penalties imposed after taking into account further reductions for applicable federal, state and local income, social security and other taxes) would be greater than the unreduced Company Payments to be received by the Executive minus (i) the Excise Tax payable with respect to such taxes)Company Payments and (ii) all applicable federal, includingstate and local income, without limitationsocial security and other taxes on such Company Payments. If the Reduced Amount is to be effective, the Company Payments shall be reduced in the following order: (A) any income cash severance based on a multiple of annual base salary or bonus, (B) any other cash amounts payable to the Executive, (C) any benefits valued as “parachute payments,” (D) acceleration of vesting of any stock option or similar awards for which the exercise price exceeds the then fair market value, and employment taxes (E) acceleration of vesting of any equity not covered by clause (D) above. In the event that the Internal Revenue Service or court ultimately makes a determination that the “excess parachute payments” plus the “base amount” is an amount other than as determined initially, an appropriate adjustment shall be made with regard to the Gross-Up Payment or Reduced Amount, as applicable, to reflect the final determination and the resulting impact on whether this Section 5(b) applies. (c) For purposes of determining whether any of the Company Payments will be subject to the Excise Tax imposed and the amount of such Excise Tax, (x) the Company Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of the Company’s independent certified public accountants appointed prior to any change in ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel selected by such accountants (the “Accountants”) such Company Payments (in whole or in part) either do not constitute “parachute payments,” including giving effect to the recalculation of stock options in accordance with Treasury Regulation Section 1.280G-1 Q/A33, represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the “base amount” or are otherwise not subject to the Excise Tax, and (y) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. All determinations hereunder shall be made by the Accountants which shall provide detailed supporting calculations both to the Company and the Executive at such time as it is requested by the Company or the Executive. The determination of the Accountants, subject to the adjustments provided below, shall be final and binding upon the Company and the Executive. (d) For purposes of determining the amount of the Gross-Up Payment, the Executive’s marginal blended actual rates of federal, state and local income taxation in the calendar year in which the change in ownership or effective control that subjects the Executive retains an to the Excise Tax occurs shall be used. In the event that the Excise Tax is subsequently determined by the Accountants to be less than the amount taken into account hereunder at the time the Gross-Up Payment is made, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the prior Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment equal attributable to the Excise Tax and U.S. federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax or a U.S. federal, state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event that any portion of the Gross-Up Payment to be refunded to the Company has been paid to any U.S. federal, state and local tax authority, repayment thereof (and related amounts) shall not be required until actual refund or credit of such portion has been made to the Executive, and interest payable to the Company shall not exceed the interest received or credited to the Executive by such tax authority for the period it held such portion. The Executive and the Company shall mutually agree upon the Paymentscourse of action to be pursued (and the method of allocating the expense thereof) if the Executive’s claim for refund or credit is denied. In the event that the Excise Tax is later determined by the Accountants or the Internal Revenue Service (or other taxing authority) to exceed the amount taken into account hereunder at the time the Gross-Up Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest or penalties payable with respect to such excess) promptly after the amount of such excess is finally determined. (iiie) All determinations required to be made under this Section 10(d), including whether and when a The Gross-Up Payment or a Reduction is requiredportion thereof provided for in Section 5(d) above shall be paid not later than the sixtieth (60th) day following an event occurring which subjects the Executive to the Excise Tax; provided, however, that if the amount of such Gross-Up Payment or Reduction and portion thereof cannot be finally determined on or before such day, the assumptions to be utilized in arriving at such determination, Company shall be made by an independent, nationally recognized accounting firm mutually acceptable pay to the Company Executive on such day an estimate, as determined in good faith by the Accountants, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to Section 5(d) above, as soon as the amount thereof can reasonably be determined, but in no event later than the ninetieth (90th) day after the occurrence of the event subjecting the Executive (to the “Auditor”Excise Tax. Subject to Sections 5(d) and 5(i); provided that , in the event a Reduction is that the amount of the estimated payments exceeds the amount subsequently determined to be requiredhave been due, the Executive may determine which Payments such excess shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that constitute a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d), shall be paid loan by the Company to the Executive within five Executive, payable on the fifth (55th) days day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the receipt Code). (f) In the event of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, any controversy with the Internal Revenue Service (or other applicable taxing authority) determines that an additional with regard to the Excise Tax, the Executive shall permit the Company to control issues related to the Excise Tax is due with respect to (at its expense), provided that such issues do not potentially materially adversely affect the PaymentsExecutive, then but the Auditor Executive shall recalculate control any other issues. In the amount of event the Gross-Up Payment or Reduction Amountissues are interrelated, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) Executive and the Company shall pay in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree the Executive shall make the final determination with regard to the issues. In the event of any conference with any taxing authority as to the Excise Tax or associated income taxes, the Executive shall permit the representative of the Company to accompany the Executive, and the Executive and the Executive’s representative shall cooperate with the Company and its representative. (g) The Company shall be responsible for all charges of the Accountants. (h) The Company and the Executive shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax. (i) Nothing in this Section 5 is intended to violate the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and to the extent that any advance or repayment obligation hereunder would do so, such obligation shall be modified so as to make the advance a nonrefundable payment to the Executive and the excess repayment obligation null and void. (j) The provisions of this Section 5 shall survive the Recalculated Amount over the Gross-Up Payment initially paid Executive’s Termination of Employment for any reason and any amount payable under this Section 5 shall be subject to the Executive or the amount provisions of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up PaymentSection 21(b).

Excise Tax. (ia) If Anything in this Agreement to the contrary notwithstanding, if it is shall be determined that any amount, right payment or distribution to the Employee or for the Employee's benefit (whether paid or payable (or otherwise provided distributed or to be provideddistributable) pursuant to the Executive by the Company or any terms of its affiliates under this Agreement or any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), otherwise (collectively, the “Payments”), "Payment") would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), be subject to the excise tax imposed by Section 4999 of the Code, as amended from time to time Internal Revenue Code (the “"Excise Tax”"), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive Employee shall be entitled to receive from Choice an additional payment from (the Company (a “"Gross-Up Payment”") in an amount such that, after payment that the net amount of the Payment and the Gross-Up Payment retained by the Executive Employee after the calculation and deduction of all taxes Excise Taxes (including any interest or penalties imposed with respect to such taxes)) on the Payment and all federal, includingstate and local income tax, without limitation, any income and employment taxes tax and Excise Tax (including any interest or penalties imposed upon with respect to such taxes) on the Gross-Up Payment provided for in this Section, and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment shall be equal to the Excise Tax imposed upon the Payments.Payment; (iiib) All determinations required to be made under this Section 10(d)Section, including whether and when a the Gross-Up Payment or a Reduction is required, required and the amount of such Gross-Up Payment or Reduction Payment, and the assumptions to be utilized in arriving at such determination, determinations shall be made by an independent, nationally recognized accounting firm mutually acceptable to Accountants which Choice shall request provide the Company Employee and the Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply Choice with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations with respect to both the Company and Executive following any determination that a Reduction or such Gross-Up Payment at the time the Employee is necessaryentitled to receive the Payment. For the purposes of this Section, the "Accountants" shall mean Choice's independent certified public accountants. All fees and expenses of the Auditor Accountants shall be paid borne solely by Choice. For the Company. Any Gross-Up Paymentpurposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as determined pursuant to this "parachute payments" within the meaning of Section 10(d)280G of the Code, and all "parachute payments" in excess of the "base amount" (as defined under Section 280G(b)(3) of the Code) shall be paid by the Company treated as subject to the Executive within five (5) days Excise Tax, unless and except to the extent that in the opinion of the receipt Accountants such Payments (in whole or in part) either do not constitute "parachute payments" or represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4) of the Auditor’s determination. All determinations made by Code) in excess of the Auditor shall be binding upon the Company and the Executive"base amount," or such "parachute payments" are otherwise not subject to such Excise Tax; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate for purposes of determining the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by Employee shall be deemed to pay Federal income taxes at the Internal Revenue Service (or other highest applicable taxing authority) after taking into account any additional interest and penalties (marginal rate of Federal income taxation for the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over calendar year in which the Gross-Up Payment initially is to be made and to pay any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to the Executive or limitations on deductions based upon the amount of the Payments after the ReductionEmployee's adjusted gross income); and to have otherwise allowable deductions for Federal, as applicable, within five (5) days state and local income tax purposes at least equal to those disallowed because of the receipt inclusion of the Auditor’s recalculation the Gross-Up Payment in the Employee's adjusted gross income. Any Gross-Up Payment with respect to any Payment shall be paid by Choice at the time the Employee is entitled to receive the Payment. Any determination by the Accountants shall be binding upon Choice and the Employee. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount less than Choice should have paid pursuant to this Section (the "Underpayment'). In the event that Choice exhausts its remedies and the Employee is required to make a payment of any Excise Tax, the Underpayment shall be promptly paid by Choice to or for the Employee's benefit.

Excise Tax. (ia) If Anything in this Agreement to the contrary notwithstanding, in the event it is shall be determined that any amountpayment, right award, benefit or benefit paid distribution (including, without limitation, the acceleration of any payment, award, distribution or payable (or otherwise provided or to be provided) to the Executive benefit), by the Company or any its subsidiaries to or for the benefit of its affiliates under Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable additional payments required under this Section 10(d), 17) (collectively, the a “PaymentsPayment”), ) would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), be subject to the excise tax imposed by Section 4999 of the CodeCode or any corresponding provisions of state or local tax law, as amended from time or any interest or penalties are incurred by Executive with respect to time such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that, that after payment by the Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of from the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non- employee director of the Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 17(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 17, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 17(a). (iiib) All Subject to the provisions of Section 17(c), all determinations required to be made under this Section 10(d)17, including the determination of whether and when a Gross-Up Payment or a Reduction is required, required and of the amount of any such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determinationPayment, shall be made by an independent, nationally recognized the Company’s independent auditors or such other accounting firm mutually acceptable to agreed by the Company and the Executive parties hereto (the “AuditorAccounting Firm”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and within 15 business days after the receipt of notice from the Company that Executive following has received a Payment, or such earlier time as is requested by the Company, provided that any determination that a Reduction or Gross-Up Payment an Excise Tax is necessary. All fees and expenses of the Auditor payable by Executive shall be paid by made on the Companybasis of substantial authority. Any The Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 10(d17(b), shall be paid by to Executive (or for the Company benefit of the Executive to the Executive within five extent of the Company’s withholding obligation with respect to applicable taxes) no later than the later of (5i) days the due date for the payment of any Excise Tax, and (ii) the receipt of the AuditorAccounting Firm’s determination. All determinations made If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish the Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, the Company is not required to withhold Excise Tax from payments to Executive. The Company will promptly provide a copy of any such opinion to Executive. Any determination by the Auditor Accounting Firm meeting the requirements of this Section 17(b) shall be binding upon the Company and Executive. As a result of the uncertainly in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 17(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive; provided that if, notwithstanding . The fees and disbursements of the Auditor’s initial determination, Accounting Firm shall be paid by the Company. (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 a Gross-Up Payment. Such notification shall be given as soon as practicable but not Later than ten business days after Executive receives written notice 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 30-day period following the date on which it gives such notice to the Company (or other applicable taxing authority) determines such shorter period ending on the date that an additional Excise Tax is due any payment of taxes with respect to such claim is due). If the PaymentsCompany 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 effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment 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 17(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and ▇▇▇ for 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 one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs Executive to pay such claim and ▇▇▇ for 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, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, the Company may not direct Executive to pay the claim and ▇▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 17(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to the Company’s complying with the requirements to Section 17(c)) promptly pay the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 17(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the Auditor amount of such advance shall recalculate offset, to the extent thereof, the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay required to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Paymentbe paid.

Excise Tax. (i) If In the event it is shall be determined that any amountpayment, right benefit, or distribution by the Firm to or for the benefit of the Executive (whether paid or payable (or otherwise provided distributed or to be provided) distributable pursuant to the Executive by the Company or any terms of its affiliates under this Agreement or otherwise, but determined without regard to any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable additional payments required under this Section 10(d), paragraph) (collectively, the a “PaymentsPayment”), ) would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986 (the “Code”) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that, 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 employment taxes any interest and penalties imposed with respect thereto) and 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. (iii) . All determinations required to be made under this Section 10(d)paragraph, including whether and when a Gross-Up Payment or a Reduction is required, required and the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized Deloitte & Touche LLP or such other certified public accounting firm mutually reasonably acceptable to the Company and Firm as may be designated by the Executive (the “AuditorAccounting Firm”); provided that in the event a Reduction is determined ) which shall provide detailed sup porting calculations both to be required, Lazard and the Executive may determine which Payments shall be reduced in order to comply with within 15 business days of the provisions receipt of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both notice from the Company and Executive following any determination that there has been a Reduction Payment, or Gross-Up Payment such earlier time as is necessaryrequested by Lazard. All fees and expenses of the Auditor Accounting Firm shall be paid borne solely by the CompanyLazard. Any Gross-Up Payment, as determined pursuant to this Section 10(d), Payment shall be paid by the Company Lazard to the Executive within five (5) days of the later of (i) the due date for the payment of any Excise Tax, and (ii) the receipt of the AuditorAccounting Firm’s determination. All determinations made Any determination by the Auditor Accounting Firm shall be binding upon the Company Lazard and the Executive; provided . 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 if, notwithstanding Gross-Up Payments which will not have been made by Lazard should have been made (“Underpayment”) or that Gross-Up Payments which were made by Lazard should not have been made (“Overpayment”). In the Auditor’s initial determinationevent that there occurs an Underpayment and the Executive thereafter is required to make a payment of any Excise Tax, the Internal Revenue Service (Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Lazard to or other applicable taxing authority) determines for the benefit of the Executive. In the event that there occurs an additional Excise Tax is due Overpayment and the Executive becomes entitled to receive any refund with respect to the PaymentsExcise Tax, then the Auditor Executive shall recalculate promptly pay to Lazard the amount of the Gross-Up Payment such refund (together with any interest paid or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other credited thereon after taxes applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Paymentthereto).

Excise Tax. (i) If Anything in this Agreement to the contrary notwithstanding, if it is shall be determined that any amount, right payment or distribution to the Executive or for the Executive’s benefit (whether paid or payable (or otherwise provided distributed or to be provideddistributable) pursuant to the Executive by the Company or any terms of its affiliates under this Agreement or any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), otherwise (collectively, the “PaymentsPayment”), ) would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), be subject to the excise tax imposed by Section section 4999 of the Code, as amended from time to time Code or any successor provision (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive from the Company an additional payment from (the Company (a “Gross-Up Payment”) in an amount such that, after payment that the net amount of the Payment and the Gross-Up Payment retained by the Executive after the calculation and deduction of all taxes Excise Taxes (including any interest or penalties imposed with respect to such taxes)) on the payment and all federal, includingstate and local income tax, without limitation, any income and employment taxes tax and Excise Tax (including any interest or penalties imposed upon with respect to such taxes) on the Gross-Up Payment provided for in this Section 6(g), and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Executive retains an Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination of the amount of Gross-Up payments otherwise required by this Section 6(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment equal to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 6(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 6(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 6(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 6(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax imposed upon than the Paymentsamount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 6(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 6(b)(iv), payments pursuant to Section 6(b)(v) and payments pursuant to Section 6(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iii) All determinations required to be made under this Section 10(d)6, including whether and when a the Gross-Up Payment or a Reduction is required, required and the amount of such Gross-Up Payment or Reduction Payment, and the assumptions to be utilized in arriving at such determinationdeterminations, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and the Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid good faith by the Company. Any Gross-Up Payment, Accountants (as determined pursuant to this Section 10(d), shall be paid by the Company to the Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Payment.defined

Excise Tax. (i) If it is determined that any amount, right or benefit paid or payable (or otherwise provided or to be provided) to the Executive by the Company or any of its affiliates under this Agreement or any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), (collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), subject to the excise tax imposed by Section 4999 of the Code, as amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (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 and employment taxes and 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. (iii) All determinations required to be made under this Section 10(d), including whether and when a Gross-Up Payment or a Reduction is required, the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and the Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d), shall be paid by the Company to the Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation of the Gross-Up Payment. (iv) Without limiting any earlier payment provided under this Section 10(d), the Gross-Up Payment (or Gross-Up Payments, if applicable) payable to Executive under this Section 10(d) shall be paid to him not later than the last day of Executive’s taxable year following the taxable year in which Executive remits the taxes owed by him that result in the obligation of the Company to pay him such Gross-Up Payment; provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(d) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv).

Excise Tax. (ia) If Anything in this Agreement to the contrary notwithstanding, if it is shall be determined that any amount, right payment or distribution to the Employee or for the Employee’s benefit (whether paid or payable (or otherwise provided distributed or to be provideddistributable) pursuant to the Executive by the Company or any terms of its affiliates under this Agreement or any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), otherwise (collectively, the “PaymentsPayment”), ) would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), be subject to the excise tax imposed by Section 4999 of the Code, as amended from time to time Internal Revenue Code (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive Employee shall be entitled to receive from Arc an additional payment from (the Company (a “Gross-Up Payment”) in an amount such that, after payment that the net amount of the Payment and the Gross-Up Payment retained by the Executive Employee after the calculation and deduction of all taxes Excise Taxes (including any interest or penalties imposed with respect to such taxes)) on the Payment and all federal, includingstate and local income tax, without limitation, any income and employment taxes tax and Excise Tax (including any interest or penalties imposed upon with respect to such taxes) on the Gross-Up Payment provided for in this Section, and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment shall be equal to the Excise Tax imposed upon the Payments.Payment; (iiib) All determinations required to be made under this Section 10(d)Section, including whether and when a the Gross-Up Payment or a Reduction is required, required and the amount of such Gross-Up Payment or Reduction Payment, and the assumptions to be utilized in arriving at such determination, determinations shall be made by an independent, nationally recognized accounting firm mutually acceptable to Accountants which Arc shall request provide the Company Employee and the Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply Arc with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations with respect to both the Company and Executive following any determination that a Reduction or such Gross-Up Payment at the time the Employee is necessaryentitled to receive the Payment. For the purposes of this Section, the “Accountants” shall mean Arc’s independent certified public accountants. All fees and expenses of the Auditor Accountants shall be paid borne solely by ▇▇▇. For the Company. Any Gross-Up Paymentpurposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as determined pursuant to this “parachute payments” within the meaning of Section 10(d)280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be paid by the Company treated as subject to the Executive within five (5) days Excise Tax, unless and except to the extent that in the opinion of the receipt Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4) of the Auditor’s determination. All determinations made by Code) in excess of the Auditor shall be binding upon the Company and the Executive“base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate for purposes of determining the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by Employee shall be deemed to pay Federal income taxes at the Internal Revenue Service (or other highest applicable taxing authority) after taking into account any additional interest and penalties (marginal rate of Federal income taxation for the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over calendar year in which the Gross-Up Payment initially is to be made and to pay any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to the Executive or limitations on deductions based upon the amount of the Payments after the ReductionEmployee’s adjusted gross income); and to have otherwise allowable deductions for Federal, as applicable, within five (5) days state and local income tax purposes at least equal to those disallowed because of the receipt inclusion of the Auditor’s recalculation the Gross-Up Payment in the Employee’s adjusted gross income. Any Gross-Up Payment with respect to any Payment shall be paid by ▇▇▇ at the time the Employee is entitled to receive the Payment. Any determination by the Accountants shall be binding upon Arc and the Employee. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount less than Arc should have paid pursuant to this Section (the “Underpayment’). In the event that Arc exhausts its remedies and the Employee is required to make a payment of any Excise Tax, the Underpayment shall be promptly paid by Arc to or for the Employee’s benefit.

Excise Tax. (ia) If it is determined that any amount, right payment or distribution by the Company to or for the benefit of Executive (whether paid or payable (or otherwise provided or pursuant to be provided) to the Executive by the Company or any of its affiliates under this Agreement or otherwise, but determined without regard to any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable additional payments required under this Section 10(d5.4 (a "Payment"), (collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), ) is subject to the excise tax imposed by Section 4999 of the Code, as amended from time to time Code or any interest or penalties thereon (together the “"Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code") is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “"Gross-Up Payment”") in an amount such that, 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 and employment taxes and (together with any interest or penalties any income taxes (together with any interest or penalties thereon, the "Additional Income tax") or any Excise Tax Tax, imposed upon the Gross-Up Payment, the Payment Executive retains an amount of the Gross-Up up Payment equal to the Excise Tax imposed upon the Payments. (iiib) All Subject to Section 5.4(c), all determinations required to be made under this Section 10(d)5.4, including whether and when a Gross-Up Payment or a Reduction is required, required and the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determinationPayment, shall be made by an independent, nationally recognized accounting the firm mutually acceptable of independent public accountants selected by the Company to audit its financial statements (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and executive within fifteen (15) business days after the receipt of notice from Executive (that there has been a Payment, or such earlier time as is requested by the “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessaryCompany. All fees and expenses of the Auditor Accounting Firm shall be paid borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d)5.4, shall be paid by the Company to the Executive within five (5) business days of after the receipt of the Auditor’s Accounting Firm's determination. All determinations made Any determination by the Auditor 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 at the time of the initial determination by the Accounting Firm hereunder, it is possible that additional Gross-Up payments should have been made by the Company (an "Underpayment"). If the Company exhausts its remedies pursuant to Section 5.4(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; provided that if, notwithstanding . (c) Executive shall notify the Auditor’s initial determination, Company in writing of any claim by the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to that, if successful, would require the Payments, then payment by the Auditor shall recalculate the amount Company of the Gross-Up Payment. Such notice shall be given as soon as practicable but no later than ten (10) business days after Executive knows of such claim and shall apprise the Company of the nature and date of requested payment of such claim. Executive shall not pay such claim before the earlier of (x) the date thirty (30) days after Executive's notice to the Company or (y) the date on which 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 reasonable requested information 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 such Executive harmless, on an after-tax basis, for any Excise Tax or additional Income Tax imposed as a result of such representation any payment of costs and expenses. Without limiting this Section 5.4(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may (1) pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and (2) either direct Executive to pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner. Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs such Executive to pay such claim and ▇▇▇ for 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 imposed with respect to such advance; and further provided that any extension of the statute of limitations for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or Reduction Amount, if applicable, based upon the determinations made contest any other issue raised by the Internal Revenue Service (or any other applicable taxing authority. (d) If, after taking into account the receipt by Executive of any additional amount advanced by the Company pursuant to Section 5.4(c), Executive becomes entitled to receive any refund with respect to such claim, executive shall (subject to the Company's complying with the requirements of Section 5.4(c)) promptly pay to the Company the amount of such refund (together with any interest and penalties (paid or credited thereon after taxes applicable thereto). If, after the “Recalculated Amount”) receipt by Executive of an amount advanced by the Company pursuant to Section 5.4(c), a determination is made that such Executive shall not be entitled to any refund with respect to such claim and the Company shall pay does not notify Executive in writing of its intent to contest such denial of refund prior to the Executive expiration of thirty days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the excess amount of such advance shall offset, to the Recalculated Amount over extent thereof, the amount of any Gross-Up Payment initially paid required to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Paymentbe paid.

Excise Tax. (ia) If Anything in this Agreement to the contrary notwithstanding, in the event it is shall be determined that any amountpayment, right award, benefit or benefit paid distribution (including, without limitation, the acceleration of any payment, award, distribution or payable (or otherwise provided or to be provided) to the Executive benefit), by the Company or any its subsidiaries to or for the benefit of its affiliates under Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable additional payments required under this Section 10(d), 17) (collectively, the “Paymentsa ”), Payment”) would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), be subject to the excise tax imposed by Section 4999 of the CodeCode or any corresponding provisions of state or local tax law, as amended from time or any interest or penalties are incurred by Executive with respect to time such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that, that after payment by the Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of from the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of the Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 17(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 17, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 280G of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 17(a). (iiib) All Subject to the provisions of Section 17(c), all determinations required to be made under this Section 10(d)17, including the determination of whether and when a Gross-Up Payment or a Reduction is required, required and of the amount of any such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determinationPayment, shall be made by an independent, nationally recognized the Company’s independent auditors or such other accounting firm mutually acceptable to agreed by the Company and the Executive parties hereto (the “AuditorAccounting Firm”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and within 15 business days after the receipt of notice from the Company that Executive following has received a Payment, or such earlier time as is requested by the Company, provided that any determination that a Reduction or Gross-Up Payment an Excise Tax is necessary. All fees and expenses of the Auditor payable by Executive shall be paid by made on the Companybasis of substantial authority. Any The Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 10(d17(b), shall be paid by to Executive (or for the Company benefit of the Executive to the Executive within five extent of the Company’s withholding obligation with respect to applicable taxes) no later than the later of (5i) days the due date for the payment of any Excise Tax, and (ii) the receipt of the AuditorAccounting Firm’s determination. All determinations made If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish the Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, the Company is not required to withhold Excise Tax from payments to Executive. The Company will promptly provide a copy of any such opinion to Executive. Any determination by the Auditor Accounting Firm meeting the requirements of this Section 17(b) shall be binding upon the Company and Executive. As a result of the uncertainly in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 17(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive; provided that if, notwithstanding . The fees and disbursements of the Auditor’s initial determination, Accounting Firm shall be paid by the Company. (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 a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice 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 30-day period following the date on which it gives such notice to the Company (or other applicable taxing authority) determines such shorter period ending on the date that an additional Excise Tax is due any payment of taxes with respect to such claim is due). If the PaymentsCompany 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 effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment 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 17(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and ▇▇▇ for 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 one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs Executive to pay such claim and ▇▇▇ for 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, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, the Company may not direct Executive to pay the claim and ▇▇▇ for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 17(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to the Company’s complying with the requirements to Section 17(c)) promptly pay the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 17(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the Auditor amount of such advance shall recalculate offset, to the extent thereof, the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay required to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Paymentbe paid.

Excise Tax. (ia) If In the event it is shall be determined that any amountpayment, right benefit or distribution (or combination thereof) by Employer, any of Employer's affiliates, one or more trusts established by Employer for the benefit of its employees, or any other person or entity, to or for the benefit of Executive (whether paid or payable (or distributed or distributable pursuant to the terms of this Agreement, or otherwise provided pursuant to or to be provided) to the Executive by the Company or any reason of its affiliates under this Agreement or any other agreement, policy, plan, program or arrangement under which Executive participates arrangement, including without limitation any stock option, stock appreciation right, phantom equity awards or is similar right, or the lapse or termination of any restriction on the vesting or exercisability of any of the foregoing) (a party, other than amounts payable under this "Payment") would be subject to the excise tax imposed by Section 10(d), (collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G 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 ▇▇▇▇▇▇ US or ▇▇▇▇▇▇ Holdings, subject to the excise tax imposed by Section 4999 of the Code, as amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under within Section 280G of the CodeCode (or any successor provision thereto) is equal or any interest or penalties are incurred by Executive with respect to or less than 110% of such excise tax (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the "Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” "), then the Executive shall be entitled to receive an additional payment from the Company or payments (a “"Gross-Up Payment”") in an amount such that, 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 employment taxes 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. (iiib) All Subject to the provisions of Section 4(a) hereof, all determinations required to be made under this Section 10(d)4, including whether and when a Gross-Up Payment or a Reduction is required, required and the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, a nationally recognized certified public accounting firm mutually acceptable as may be designated by Employer, and reasonably satisfactory to the Company and the Executive (the “Auditor”"Accounting Firm"); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations both to both the Company Employer and Executive following within fifteen (15) business days of Termination Date, or such earlier time as is requested by Employer; provided that for purposes of determining the amount of any determination that a Reduction or 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 necessaryto 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 Auditor Accounting Firm shall be paid borne solely by the CompanyEmployer. Any Gross-Up Payment, as determined pursuant to this Section 10(d)4, shall be paid by the Company Employer to Executive (or to the appropriate taxing authority on Executive's behalf) when due immediately prior to the date Executive within five (5) days is required to make payment of any excise Tax or other taxes. If the receipt of the Auditor’s determinationAccounting Firm determines that no Excise Tax is payable by Executive, it shall so indicate to Executive in writing, with an opinion that Executive has substantial authority not to report any Excise Tax on his/her federal state, local income or other tax return. All determinations made Any determination by the Auditor Accounting Firm shall be binding upon the Company Employer and the Executive; provided that if, notwithstanding the Auditor’s initial determination, Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce Employer's obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Section 4999 of the Code (or other applicable taxing authorityany successor provision thereto) determines and the possibility of similar uncertainty regarding state or local tax law at the time of any determination by the Accounting Firm hereunder, it is possible that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment determined by the Accounting Firm to be due to (or Reduction Amounton behalf of) Executive was lower than the amount actually due ("Underpayment"). In the event that the Employer exhausts its remedies pursuant to Section 4(c) and Executive thereafter is required to make a payment of any Excise Tax, if applicablethe Accounting Firm shall determine the amount of the Underpayment that has occurred as promptly as possible and notify Employer and Executive of such calculations, based upon and any such Underpayment (including the determinations made Gross-Up Payment to Executive) shall be promptly paid by Employer to or for the benefit of Executive within five (5) business days after receipt of such determination and calculations. (c) Executive shall notify Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Employer of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing of such claim and shall apprise Employer of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives such notice to Employer (or other applicable taxing authoritysuch shorter period ending on the date that any payment of taxes with respect to such claim is due). If Employer notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall (i) after taking into account give Employer any information which is in Executive's possession reasonably requested by Employer relating to such claim, (ii) take such action in connection with contesting such claim as Employer 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 Employer, (iii) cooperate with Employer in good faith in order to effectively contest such claim, and (iv) permit Employer to participate in any proceedings relating to such claim; provided, however, that Employer 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 “Recalculated Amount”) foregoing provisions of this Section 4(c), Employer 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 Company taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and ▇▇▇ for 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 one or more appellate courts, as Employer shall determine; provided, further, that if Employer directs Executive to pay such claim and ▇▇▇ for a refund, Employer shall pay the amount of such claim to Executive, 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 payment or with respect to any imputed income with respect to such payment (including the applicable Gross-Up Payment); provided, further, that if Executive is required to extend the excess statute of limitations to enable Employer to contest such claim, Executive may limit this extension solely to such contested amount. Employer's control of the Recalculated Amount over the contest shall be limited to issues with respect to which a Gross-Up Payment initially paid would be payable hereunder and Executive shall be entitled to settle or contest, as the Executive case may be, any other issue raised by the Internal Revenue Service or the amount of the Payments any other taxing authority. (d) If, after the Reductionreceipt by Executive of an amount paid by Employer pursuant to this Section 4, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Executive becomes entitled to receive any refund with respect to a Gross-Up Payment, Executive shall (subject to Employer's complying with the requirements of Section 4(c)) promptly pay to Employer the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). (e) To the extent that the applicable regulations under Code Section 280G permits a later recalculation by the Employer, or requires a later recalculation of whether the Payments are subject to the Excise Tax, the provisions of this Section 4 shall again be applied based upon such recalculation.

Excise Tax. (i) If it is determined that any amount, right or benefit paid or payable (or otherwise provided or to be provided) to the Executive by the Company or any of its affiliates under this Agreement or any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), (collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), subject to the excise tax imposed by Section 4999 of the Code, as amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (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 and employment taxes and 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. (iii) All determinations required to be made under this Section 10(d), including whether and when a Gross-Up Payment or a Reduction is required, the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and the Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. , Any Gross-Up Payment, as determined pursuant to this Section 10(d), shall be paid by the Company to the Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Payment. (iv) Without limiting any earlier payment provided under this Section 10(d), the Gross-Up Payment (or Gross-Up Payments, if applicable) payable to Executive under this Section 10(d) shall be paid to him not later than the last day of Executive’s taxable year following the taxable year in which Executive remits the taxes owed by him that result in the obligation of the Company to pay him such Gross-Up Payment.

Excise Tax. (i) If it is determined that any amount, right or benefit paid or payable (or otherwise provided or to be provided) to the Executive by the Company or any of its affiliates under this Agreement or any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), 6 (collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), subject to the excise tax imposed by Section 4999 of the Code, as amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of $50,000 greater than the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Taxtax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% $50,000 greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (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 and employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up PaymentPayment (and any interest and penalties imposed with respect thereto), the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax (including any interest and penalties imposed with respect thereto) imposed upon the Payments. (iii) All determinations required to be made under this Section 10(d)6, including whether and when a Gross-Up Payment or a Reduction is required, the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and the Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d)6. The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d)6, shall be paid by the Company to the Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation of the Gross-Up Payment.

Excise Tax. (ia) If it is determined In the event that the Executive shall become entitled to payments and/or benefits provided by this Agreement or any amount, right or benefit paid or payable other amounts in the “nature of compensation” (or otherwise provided or to be provided) whether pursuant to the Executive by the Company or any terms of its affiliates under this Agreement or any other plan, program arrangement or arrangement under which Executive participates agreement with the Company, any person whose actions result in a change of ownership or is a party, other than amounts payable under this effective control covered by Section 10(d), (collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G 280G(b)(2) of the Internal Revenue Code of 1986, as amended (“Code”) or any person affiliated with the Company or such person) as a result of a Change in Control (collectively the “Company Payments”), and if such Company Payments will be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code, as amended from time to time Code (the “Excise Tax”and any similar tax that may hereafter be imposed by any taxing authority), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable Company shall pay to the Executive under this Agreement shall be reduced at the time specified in Section 5(e) hereof anadditional amount (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Company Payments and any U.S. federal, state, and local income or payroll tax upon the Gross-Up Payment provided for by this Section 5(a), but before deduction for any U.S. federal, state, and local income or payroll tax on the Company Payments, shall be equal to the Company Payments. (b) Notwithstanding the foregoing provisions of Section 5(a) to the contrary, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but the Company Payments do not exceed 110% of the greatest amount (the “Reduced Amount”) that could be paid to the Executive such that the receipt of the Company Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive and the Company Payments, in the aggregate, shall be reduced to an amount such thatthat is one dollar ($1) less than the Reduced Amount; provided, after payment however, that the reduction shall occur only if the reduced Company Payments received by the Executive of all taxes (including any interest or penalties imposed after taking into account further reductions for applicable federal, state and local income, social security and other taxes) would be greater than the unreduced Company Payments to be received by the Executive minus (i) the Excise Tax payable with respect to such taxes)Company Payments and (ii) all applicable federal, includingstate and local income, without limitationsocial security and other taxes on such Company Payments. If the Reduced Amount is to be effective, the Company Payments shall be reduced in the following order: (A) any income cash severance based on a multiple of annual base salary or bonus, (B) any other cash amounts payable to the Executive, (C) any benefits valued as “parachute payments,” (D) acceleration of vesting of any stock option or similar awards for which the exercise price exceeds the then fair market value, and employment taxes (E) acceleration of vesting of any equity not covered by clause (D) above. In the event that the Internal Revenue Service or court ultimately makes a determination that the “excess parachute payments” plus the “base amount” is an amount other than as determined initially, an appropriate adjustment shall be made with regard to the Gross-Up Payment or Reduced Amount, as applicable, to reflect the final determination and the resulting impact on whether this Section 5(b) applies. (c) For purposes of determining whether any of the Company Payments will be subject to the Excise Tax imposed and the amount of such Excise Tax, (x) the Company Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of the Company’s independent certified public accountants appointed prior to any change in ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel selected by such accountants (the “Accountants”) such Company Payments (in whole or in part) either do not constitute “parachute payments,” including giving effect to the recalculation of stock options in accordance with Treasury Regulation Section 1.280G-1 Q/A33, represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the “base amount” or are otherwise not subject to the Excise Tax, and (y) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. All determinations hereunder shall be made by the Accountants which shall provide detailed supporting calculations both to the Company and the Executive at such time as it is requested by the Company or the Executive. The determination of the Accountants, subject to the adjustments provided below, shall be final and binding upon the Company and the Executive. (d) For purposes of determining the amount of the Gross-Up Payment, the Executive’s marginal blended actual rates of federal, state and local income taxation in the calendar year in which the change in ownership or effective control that subjects the Executive retains an to the Excise Tax occurs shall be used. In the event that the Excise Tax is subsequently determined by the Accountants to be less than the amount taken into account hereunder at the time the Gross-Up Payment is made, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the prior Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment equal attributable to the Excise Tax and U.S. federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax or a U.S. federal, state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event that any portion of the Gross-Up Payment to be refunded to the Company has been paid to any U.S. federal, state and local tax authority, repayment thereof (and related amounts) shall not be required until actual refund or credit of such portion has been made to the Executive, and interest payable to the Company shall not exceed the interest received or credited to the Executive by such tax authority for the period it held such portion. The Executive and the Company shall mutually agree upon the Paymentscourse of action to be pursued (and the method of allocating the expense thereof) if the Executive’s claim for refund or credit is denied. In the event that the Excise Tax is later determined by the Accountants or the Internal Revenue Service (or other taxing authority) to exceed the amount taken into account hereunder at the time the Gross-Up Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest or penalties payable with respect to such excess) promptly after the amount of such excess is finally determined. (iiie) All determinations required to be made under this Section 10(d), including whether and when a The Gross-Up Payment or a Reduction is requiredportion thereof provided for in Section 5(d) above shall be paid not later than the sixtieth (60th) day following an event occurring which subjects the Executive to the Excise Tax; provided, however, that if the amount of such Gross-Up Payment or Reduction and portion thereof cannot be finally determined on or before such day, the assumptions to be utilized in arriving at such determination, Company shall be made by an independent, nationally recognized accounting firm mutually acceptable pay to the Company Executive on such day an estimate, as determined in good faith by the Accountants, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to Section 5(d) above, as soon as the amount thereof can reasonably be determined, but in no event later than the ninetieth (90th) day after the occurrence of the event subjecting the Executive (to the “Auditor”Excise Tax. Subject to Sections 5(d) and 5(i); provided that , in the event a Reduction is that the amount of the estimated payments exceeds the amount subsequently determined to be requiredhave been due, the Executive may determine which Payments such excess shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that constitute a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d), shall be paid loan by the Company to the Executive within five Executive, payable on the fifth (55th) days day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the receipt Code). (f) In the event of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, any controversy with the Internal Revenue Service (or other applicable taxing authority) determines that an additional with regard to the Excise Tax, the Executive shall permit the Company to control issues related to the Excise Tax is due with respect to (at its expense), provided that such issues do not potentially materially adversely affect the PaymentsExecutive, then but the Auditor Executive shall recalculate control any other issues. In the amount of event the Gross-Up Payment or Reduction Amountissues are interrelated, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) Executive and the Company shall pay in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree the Executive shall make the final determination with regard to the issues. In the event of any conference with any taxing authority as to the Excise Tax or associated income taxes, the Executive shall permit the representative of the Company to accompany the Executive, and the Executive and the Executive’s representative shall cooperate with the Company and its representative. (g) The Company shall be responsible for all charges of the Accountants. (h) The Company and the Executive shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax. (i) Nothing in this Section 5 is intended to violate the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and to the extent that any advance or repayment obligation hereunder would do so, such obligation shall be modified so as to make the advance a nonrefundable payment to the Executive and the excess repayment obligation null and void. (j) The provisions of this Section 5 shall survive the Recalculated Amount over the Gross-Up Payment initially paid Executive’s Termination of Employment for any reason and any amount payable under this Section 5 shall be subject to the Executive or the amount provisions of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up PaymentSection 22(b).

Excise Tax. (ia) If it is determined that Any other provision of this Agreement to the contrary notwithstanding, if any amount, right or benefit payment in the nature of compensation to be paid or payable (or otherwise provided or to be provided) to the Executive by the Company or any of its affiliates you under this Agreement or any other plan, program or arrangement under which Executive participates or otherwise is considered to be a party, other than amounts payable under this Section 10(d), (collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G 280G(b) of the Internal Revenue Code of 1986Code, the Company shall pay to you an additional amount (hereinafter referred to as amended (the “CodeExcise Tax Premium”), subject . The Excise Tax Premium shall be equal to the excise tax imposed by determined under Code Section 4999 attributable to the total amount of payments received by you. The Excise Tax Premium shall also include any amount attributable to excise tax on the Code, as amended from time Excise Tax Premium. The Company shall also pay to time you an additional amount (the “Additional Amount”) such that the net amount received by you, after paying any applicable Excise Tax”)Tax Premium and any federal or state income, excise or other tax on such additional amount, shall be equal to the amount that you would have received if such Excise Tax Premium were not applicable. You shall be deemed to pay income taxes at all relevant times at the highest marginal rate of income taxation in effect in your taxing jurisdiction. The Additional Amount shall include any amount attributable to income, excise or other tax on the Additional Amount. (b) Not later than 30 days following any payment in the nature of compensation described herein, the independent public accountants acting as auditors for the Company on the date of the transaction constituting the change of control within the meaning of Code Section 280G (or another accounting firm designated by you) shall determine whether the sum of the present value of any “parachute payments” payable under this Agreement or otherwise and the present value of any other “parachute payments” received by you upon or after any such Payments change of control is in excess of the amount you can receive without causing you to be subject to an excise tax with respect to such amount on account of Code Section 4999, and shall determine the amount of any Excise Tax Premium and Additional Amount payable to you. The Excise Tax Premium and Additional Amount shall be paid to you as soon as practicable but in no event later than the time when the tax payment is due, including by way of withholding, and shall be net of any amounts required to be withheld for taxes. (calculated c) For purposes of this Section, “present value” means the value determined in a manner consistent accordance with that set forth the principles of Section 1274 (b) (2) of the Code under the rules provided in the applicable regulations promulgated Treasury Regulations under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (iid) In To the event it shall be determined that the amount of the Payments payable extent Code Section 280G is amended prior to the Executive termination of this Agreement, or is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (replaced by a “Gross-Up Payment”) in an amount such thatsuccessor statute, after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes and 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. (iii) All determinations required to be made under this Section 10(d), including whether and when a Gross-Up Payment or a Reduction is required, the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and the Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d)5 shall be deemed modified without further action of the parties in a manner consistent with such amendments or successor statutes, as the case may be. In the event that Code Section 280G or any successor statute is repealed, this Section 5 shall cease to be effective on the effective date of such repeal. The Auditor shall promptly provide detailed supporting calculations to both parties recognize that Treasury Regulations under Code Sections 280G and 4999 may affect the Company amount that may be paid hereunder and Executive following agree that, upon the issuance of any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses such regulations, this Agreement may be modified as in good faith may be deemed necessary in light of the Auditor provisions of such regulations to achieve the purposes hereof, and that consent to such modifications shall not be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d), shall be paid by the Company to the Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Paymentunreasonably withheld.

Excise Tax. (ia) If Anything in this Agreement to the contrary notwithstanding, in the event it is shall be determined that any amountpayment, right award, benefit or benefit paid distribution (including, without limitation, the acceleration of any payment, award, distribution or payable (or otherwise provided or to be provided) to the Executive benefit), by the Company or any its subsidiaries to or for the benefit of its affiliates under Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable additional payments required under this Section 10(d), 19) (collectively, the a “PaymentsPayment”), ) would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), be subject to the excise tax imposed by Section 4999 of the CodeCode or any corresponding provisions of state or local tax law, as amended from time or any interest or penalties are incurred by Executive with respect to time such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that, that after payment by the Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment and any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of from the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of the Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 19(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 19, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed Executive Employment Agreement – ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Peak Resorts, Inc. 11 the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 19(a). (iiib) All Subject to the provisions of Section 19(c), all determinations required to be made under this Section 10(d)19, including the determination of whether and when a Gross-Up Payment or a Reduction is required, required and of the amount of any such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determinationPayment, shall be made by an independent, nationally recognized the Company’s independent auditors or such other accounting firm mutually acceptable to agreed by the Company and the Executive parties hereto (the “AuditorAccounting Firm”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and within 15 business days after the receipt of notice from the Company that Executive following has received a Payment, or such earlier time as is requested by the Company, provided that any determination that a Reduction or Gross-Up Payment an Excise Tax is necessary. All fees and expenses of the Auditor payable by Executive shall be paid by made on the Companybasis of substantial authority. Any The Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 10(d19(b), shall be paid by to Executive (or for the Company benefit of the Executive to the Executive within five extent of the Company’s withholding obligation with respect to applicable taxes) no later than the later of (5i) days the due date for the payment of any Excise Tax, and (ii) the receipt of the AuditorAccounting Firm’s determination. All determinations made If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish the Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, the Company is not required to withhold Excise Tax from payments to Executive. The Company will promptly provide a copy of any such opinion to Executive. Any determination by the Auditor Accounting Firm meeting the requirements of this Section 19(b) shall be binding upon the Company and Executive. As a result of the Executive; provided uncertainly 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 ifGross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), notwithstanding consistent with the Auditor’s initial determinationcalculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 19(c) and Executive thereafter is required to make a payment of Excise Tax, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor Accounting Firm shall recalculate determine the amount of the Gross-Up Payment or Reduction AmountUnderpayment, if applicableany, based upon that has occurred and any such Underpayment shall be promptly paid by the determinations made Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company. (c) Executive shall notify the Company in writing of any claim by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (that, if successful, would require the “Recalculated Amount”) and payment by the Company shall pay to the Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to the Executive or the amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the a Gross-Up Payment.. Such notification shall be given as soon as practicable but not Later than ten business days after Executive receives written notice 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 30-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes Executive Employment Agreement – ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Peak Resorts, Inc. 12 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 effectively to contest such claim, and