services under this Agreement primarily from the offices of LMC in Englewood, Colorado andperiodically from the offices of the Company in Santa Monica, California. Executive shall not berequired to relocate his principal residence from the Englewood, Colorado metropolitan area to theSanta Monica, California metropolitan area during the Term. The Company and Executive shall agreeon a reasonable budget for Executive’s travel between Englewood and Santa Monica as necessary forthe conduct of the Company’s business and the performance of Executive’s duties hereunder     1.6 No Conflicting Agreement. Executive represents and warrants to the Company thatthere are no agreements or arrangements, whether written or oral, in effect which would preventExecutive from rendering his services to the Company during the Term in accordance with theprovisions of this Agreement.ARTICLE II COMPENSATION     2.1 Compensation. For all services rendered by Executive hereunder and all covenantsand conditions undertaken by him pursuant to this Agreement, the Company shall pay, and Executiveshall accept, as full compensation, the amounts set forth in this Article II.     2.2 Base Salary. The base salary shall be an annual salary of $426,000 (the “BaseSalary”), payable by the Company in accordance with the Company’s normal payroll practices.Beginning as of the first anniversary of the Commencement Date, the Base Salary shall be reviewedon an annual basis during the Term for increase in the sole discretion of the compensationcommittee (the “Committee”) of the Board of Directors of the Company.     2.3 Bonus. For each fiscal year during the Term, in addition to the Base Salary,Executive shall be eligible for an annual bonus (the “Bonus”) of between 75% (the “Minimum TargetBonus”) and 150% of Executive’s annual Base Salary. (The Company’s fiscal year is currentlyJanuary 1 through December 31 of each year.) Executive’s entitlement to any Bonus will bedetermined by the Committee in its sole discretion, based upon the achievement of such criteria asthe Committee may establish in its sole discretion. Nothing in this Agreement shall be construedto guarantee the payment of any Bonus to Executive. For the avoidance of doubt, any bonus for the2008 fiscal year shall be prorated to reflect the period of time between the Commencement Date andDecember 31, 2008 (i.e., September 17, 2008 through December 31, 2008), as determined bythe Committee in its sole discretion, based upon the achievement of such criteria as the Committeemay establish in its sole discretion.     2.4 Tax Preparation Assistance. On the Company’s last regularly scheduled payrolldate in August of each calendar year beginning in 2009 and ending in the calendar year followingthe year in which the Term expires, the Company shall pay Executive an annual tax preparationassistance bonus of $5,000.     2.5 Deductions. The Company shall deduct from the compensation described in Sections2.2, 2.3 and 2.4, and from any other compensation payable pursuant to this Agreement, any federal,state or local withholding taxes, social security contributions and any other amounts which
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may be required to be deducted or withheld by the Company pursuant to any federal, state or locallaws, rules or regulations.     2.6 Disability Adjustment. Any compensation otherwise payable to Executive pursuantto Sections 2.2 and 2.3 in respect of any period during which Executive is Disabled (ascontemplated in Section 4.4) shall be reduced by any amounts payable to Executive for loss ofearnings or the like under any insurance plan or policy sponsored by the Company.ARTICLE IIIBENEFITS; EXPENSES     3.1 Benefits. Executive shall be entitled to participate in such group life, health,accident, disability or hospitalization insurance plans and retirement plans as the Company maymake available to its other senior executive employees as a group (the “Company Plans”), subject tothe terms and conditions of any such plans, regardless of whether Executive participates in anygroup life, health, accident, disability or hospitalization insurance plan or retirement planoffered by LMC, except that Executive may not participate in the Company’s group health plan at anytime that Executive is participating on a voluntary basis in a group health plan made available byLMC. Executive’s participation in any Company Plan shall be at a level, and on terms andconditions, that are commensurate with his positions and responsibilities at the Company.     3.2 Expenses. The Company agrees that Executive is authorized to incur reasonable andappropriate expenses in the performance of his duties hereunder and in promoting the business ofthe Company in accordance with the terms of the Company’s (or LMC’s) Travel & Entertainment Policy(as the same may be modified or amended by the Company or LMC, as applicable, from time to time inits sole discretion).     3.3 Vacation. Executive shall accrue a total of one hundred sixty (160) hours ofvacation per year following the date of this Agreement. If, at any time during the Term, Executiveaccumulates two hundred forty (240) hours of earned but unused vacation time (the “Accrual Cap”),Executive will not accrue additional vacation time until he has taken a portion of the previouslyearned vacation. Executive will again accrue paid vacation time when his accumulated amount ofearned but unused vacation time falls below the Accrual Cap. Upon termination of Executive’semployment, any accrued but unused vacation time will be paid to Executive.     3.4 Key Man Insurance. The Company may secure in its own name or otherwise, and atits own expense, life, health, accident and other insurance covering Executive alone or withothers, and Executive shall not have any right, title or interest in or to such insurance otherthan as expressly provided herein. Executive agrees to assist the Company in procuring suchinsurance by submitting to the usual and customary medical and other examinations to be conductedby such physicians as the Company or such insurance company may designate and by signing suchapplications and other written instruments as may be required by the insurance companies to whichapplication is made for such insurance. Executive’s failure to submit to such usual and customarymedical and other examinations shall be deemed a material breach of this Agreement.
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     3.5 Equity Grants. As part of the consideration for Executive’s services to theCompany during the Term, the Company has made the following grants to Executive pursuant to theAscent Media Corporation 2008 Incentive Plan (the “Plan”):          (a) A grant of 91,701 shares (the “Restricted Shares”) of the Company’s Series A Common Stock,par value $0.01 per share (“ASCMA Stock”), pursuant to the Restricted Stock Award Agreement datedas of November 13, 2008, by and between the Company and Executive (the “Restricted StockAgreement”); and          (b) A grant of options to purchase from the Company, at an exercise price of $21.81 per share,347,059 shares of ASCMA Stock (the “Options”), pursuant to the Non-Qualified Stock Option Agreementdated as of November 13, 2008, by and between the Company and Executive (the “Option Agreement”).The Restricted Shares and the Options shall be subject in all respects to the terms and conditionsof the Plan and the Restricted Stock Agreement and Option Agreement, as applicable.ARTICLE IVTERMINATION; DEATH; DISABILITY     4.1 Termination of Employment For Cause. In addition to any other remedies availableto the Company at law, in equity or as set forth in this Agreement, the Company shall have theright, upon written notice to Executive, to terminate Executive’s employment hereunder at any timefor “Cause” (a “Termination For Cause”). In the event of a Termination For Cause, Executive’semployment will terminate and the Company shall have no further liability or obligation toExecutive (other than the Company’s obligation to pay Base Salary and vacation time accrued butunpaid as of the date of termination and reimbursement of expenses incurred prior to the date oftermination in accordance with Section 3.2 above).     For purposes of this Agreement, “Cause” shall mean: (a) any act or omission that constitutesa breach by Executive of any of his material obligations under this Agreement; (b) the continuedfailure or refusal of Executive to (i) substantially perform the material duties required of him asChairman of the Board and Chief Executive Officer of the Company and/or (ii) to comply withreasonable directions of the Board of Directors of the Company; (c) any material violation byExecutive of any (i) policy, rule or regulation of the Company or (ii) any law or regulationapplicable to the business of the Company or any of its Affiliates; (d) Executive’s material act oromission constituting fraud, dishonesty or misrepresentation, occurring subsequent to thecommencement of his employment with the Company; (e) Executive’s gross negligence in theperformance of his duties hereunder; (f) Executive’s conviction of, or plea of guilty or *nolocontendere*to, any crime (whether or not involving the Company) which constitutes a felony or crimeof moral turpitude or is punishable by imprisonment of 30 days or more, provided,however, that nothing in this Agreement shall obligate the Company to pay Base Salary orany bonus compensation or benefits during any period that Executive is unable to perform his dutieshereunder due to any incarceration, and provided, further, that nothing shallprevent Executive’s termination under any other subsection of this Section 4.1 if it providesindependent grounds for termination; or (g) any other misconduct by Executive that is materially
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injurious to the financial condition or business reputation of, or is otherwise materiallyinjurious to, the Company or any of its Affiliates.     Notwithstanding the foregoing, no purported Termination For Cause pursuant to (a), (b), (c),(d), (e) or (g) of the preceding paragraph of this Section 4.1 shall be effective unless all of thefollowing provisions shall have been complied with: (i) Executive shall be given written notice bythe Company of its intention to effect a Termination For Cause, such notice to state in detail theparticular circumstances that constitute the grounds on which the proposed Termination For Cause isbased; and (ii) Executive shall have ten (10) business days after receiving such notice in which tocure such grounds, to the extent such cure is possible, as determined in the sole discretion of theCompany.     4.2 Termination of Employment Without Cause. During the Term, the Company may at anytime, in its sole discretion, terminate the employment of Executive hereunder for any reason (otherthan those set forth in Section 4.1 above) upon written notice (the “Termination Notice”) toExecutive (a “Termination Without Cause”). In such event, the Company shall pay Executive anamount equal to the sum of the following: (a) any Base Salary and vacation time accrued but unpaid as of the date oftermination;  (b) subject to Sections 4.5, 4.6, 4.7, 4.10 and 5.3 below, an amount (the“Severance Payment”) equal to: (i) if the termination of Executive’s employment occurs prior to aChange in Control (as defined in Section 4.8), the product of (i) the sum ofExecutive’s Annual Base Salary plus the Minimum Target Bonus, both as in effectimmediately prior to such Termination Without Cause, multiplied by (ii) 2; or  (ii) if the termination of Executive’s employment occurs concurrentlywith or following a Change in Control, the product of (i) the sum of Executive’sAnnual Base Salary plus the Minimum Target Bonus, both as in effect immediatelyprior to such Termination Without Cause, multiplied by (ii) 2.5; (c) any Bonus to which Executive has become entitled for the calendar year prior tothe year in which such Termination Without Cause occurs but which remains unpaid at thedate of termination (“Unpaid Bonus”); and  (d) any reimbursement for expenses incurred in accordance with Section 3.2.Subject to Section 4.10, any Severance Payment to which Executive becomes entitled shall be payablein a lump sum on the sixtieth (60th)day following the date of termination ofExecutive’s employment (or, if such day is not a business day, on the first business daythereafter).     In addition, subject to Sections 4.5, 4.6, 4.7, 4.10 and 5.3 below, to the extent suchcoverage is available and is elected by Executive under the Consolidated Omnibus BudgetReconciliation Act of 1985 (“COBRA”), and to the extent that Executive is not otherwise eligible toparticipate in LMC’s plans, the Company shall contribute to the health insurance plan maintained bythe Company and covering the Executive and his dependents as of the date of termination, or any
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successor plan maintained by the Company, that amount that reflects the proportionate part ofthe premium for such coverage that is paid by the Company as of the date of termination (the“Benefits Payments”), such Benefits Payments to be made monthly in accordance with the Company’snormal procedures for the payment of health insurance premiums, throughout the period beginning onthe date of termination and ending on the earlier of the 24-month anniversary of the dateof termination and the expiration of the coverage period specified in COBRA, such period to bedetermined as of the date of termination (the “Reimbursement Period”) (i.e., Executiveshall bear responsibility for that portion of the health insurance premiums in excess of theBenefits Payments), or, alternately, in the Company’s sole discretion, the Company shall reimburseExecutive the amount of the Benefits Payment on a monthly basis during the Reimbursement Period,upon Executive’s submission to the Company of adequate proof of payment of the full COBRA premiumby Executive; provided, however, that if Executive becomes employed with anotheremployer during the Reimbursement Period and is eligible to receive health and/or medical benefitsunder such other employer’s plans, the Company’s payment obligation under this paragraph shall bereduced to the extent that comparable benefits and/or coverage is provided under such otheremployer’s plans. For the avoidance of doubt, Executive shall be responsible for paying any U.S.federal or state income taxes associated with the Benefits Payments.     Provided that a Change in Control (as defined in Section 4.8 below) has not then occurred,within the period beginning on the date that is six (6) months prior to the expiration of the Termand ending on the date that is three (3) months prior to the expiration of the Term (the “NoticePeriod”), the Company shall deliver a written notice to Executive stating either (i) that theCompany does not intend to offer Executive a new employment agreement to take effect at theexpiration of the Term (a “Non-Renewal Notice”) or (ii) that the Company offers Executive a newemployment agreement to take effect at the expiration of the Term upon terms (other than the lengthof the term of such new employment agreement) that are at least as favorable to Executive as theterms of this Agreement, and the material terms of such offer shall be summarized or set forth inthe notice (“Renewal Notice”). If the Company delivers a Non-Renewal Notice, or if the Companyfails to deliver either a Renewal Notice or a Non-Renewal Notice within the Notice Period,Executive’s employment shall be terminated at the expiration of the Term (or at such earlier dateas may be set forth in the Non-Renewal Notice), and such termination shall be a Termination WithoutCause, whereupon, subject to Sections 4.5, 4.6, 4.7, 4.10 and 5.3 below, Executive shall beentitled to receive the amounts and benefits as provided under this Section 4.2. If the Companydelivers a Renewal Notice and Executive fails to accept such offer in writing prior to the datethat is ninety (90) days following delivery of the Renewal Notice, Executive’s employment shall beterminated as of such 90th day and such termination shall be a Termination WithoutCause, whereupon, subject to Sections 4.5, 4.6, 4.7, 4.10 and 5.3 below, Executive shall beentitled to receive the amounts and benefits as provided under this Section 4.2 except that “1”shall be substituted for “2” in Section 4.2(b)(i) for purposes of calculating Executive’s SeverancePayment and “12-month anniversary” shall be substituted for “24-month anniversary” for purposes ofcalculating Executive’s Benefits Payments and Reimbursement Period under this Section 4.2.     Executive acknowledges that the payments and benefits described in this Section 4.2, togetherwith any rights or benefits under any written plan or agreement which have vested on or prior tothe termination date of Executive’s employment under this Section 4.2, constitute the only paymentswhich Executive shall be entitled to receive from the Company hereunder in the event of anytermination of his employment pursuant to this Section 4.2, and the Company shall have no furtherliability or obligation to him hereunder or otherwise in respect of his employment.
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     4.3 Termination of Employment With Good Reason. In addition to any other remediesavailable to Executive at law, in equity or as set forth in this Agreement, Executive shall havethe right during the Term, upon written notice to the Company, to terminate his employmenthereunder upon the occurrence of any of the following events without the prior written consent ofExecutive: (a) a material reduction in Executive’s then current Base Salary; (b) a materialreduction in Executive’s authority, duties or responsibilities with the Company; (c) a materialchange in the office or location at which Executive is required to perform services hereunder, or(d) a material breach by the Company of any provision of this Agreement (a “Termination With GoodReason”).     Notwithstanding the foregoing, no purported Termination With Good Reason pursuant to thisSection 4.3 shall be effective unless all of the following provisions shall have been compliedwith: (i) Executive shall give the Company a written notice of Executive’s intention to effect aTermination With Good Reason, such notice to state in detail the particular circumstances thatconstitute the grounds on which the proposed Termination With Good Reason is based and to be givenno later than ninety (90) days after the initial occurrence of such circumstances; (ii) the Companyshall have thirty (30) days after receiving such notice in which to cure such grounds, to theextent such cure is possible; and (iii) if the Company fails to cure such grounds within such30-day period, Executive terminates his employment hereunder on the last day of such 30-day period.     In the event that a Termination With Good Reason occurs, then, subject to Sections 4.5, 4.6,4.7, 4.10 and 5.3 below, Executive shall have the same entitlement to the amounts and benefits asprovided under Section 4.2 for a Termination Without Cause.     Executive acknowledges that the payments and benefits referred to in this Section 4.3,together with any rights or benefits under any written plan or agreement which have vested on orprior to the termination date of Executive’s employment under this Section 4.3, constitute the onlypayments which Executive shall be entitled to receive from the Company hereunder in the event ofany termination of his employment pursuant to this Section 4.3, and the Company shall have nofurther liability or obligation to him hereunder or otherwise in respect of his employment.     4.4 Death; Disability. In the event that Executive dies or becomes Disabled (asdefined herein) during the Term, Executive’s employment shall terminate either (i) when such deathoccurs, or (ii) upon written notice by the Company at any time after Disability occurs (providedthat, in the event of any Disability, the Company shall have the right, but not the obligation, toterminate this Agreement), and, in either event, and, subject to Section 4.10, the Company shallpay Executive (or his legal representative, as the case may be) as follows: (a) any Base Salary and vacation time accrued but unpaid as of the date of death ortermination for Disability;  (b) any reimbursement for expenses incurred in accordance with Section 3.2; and  (c) an amount equal to Executive’s annual Base Salary in effect on such terminationdate multiplied by 2, payable in a single lump sum on the sixtieth (60th) business dayfollowing the termination date; provided, however, that, in the eventExecutive is eligible to participate in, and is covered by, the Company’s basic lifeinsurance group benefit plan, the Company’s obligation under this subsection 4.4(c)shall be reduced
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   to an amount equal to Executive’s annual Base Salary in effect on such terminationdate multiplied by 1, payable in a single lump sum on the sixtieth (60th) businessday following the termination date.     For the purposes of this Agreement, Executive shall be deemed to be “Disabled” or have a“Disability” if, because of Executive’s physical or mental disability, he has been substantiallyunable to perform his duties hereunder for twelve (12) work weeks in any twelve (12) month period.Executive shall be considered to have been substantially unable to perform his duties hereunderonly if he is either (a) unable to reasonably and effectively carry out his duties with reasonableaccommodations by the Company or (b) unable to reasonably and effectively carry out his dutiesbecause any reasonable accommodation which may be required would cause the Company undue hardship.In the event of a disagreement concerning Executive’s perceived Disability, Executive shall submitto such examinations as are deemed appropriate by three practicing physicians specializing in thearea of Executive’s Disability, one selected by Executive, one selected by the Company, and oneselected by both such physicians. The majority decision of such three physicians shall be finaland binding on the parties. Nothing in this paragraph is intended to limit the Company’s right toinvoke the provisions of this paragraph with respect to any perceived Disability of Executive.     Notwithstanding the foregoing, to the extent and for the period required by any state orfederal family and medical leave law, upon Executive’s request (i) he shall be considered to be onunpaid leave of absence and not terminated, (ii) his group health benefits shall remain in fullforce and effect, and (iii) if Executive recovers from any such Disability, at that time, to theextent required by any state or federal family and medical leave law, upon Executive’s request, heshall be restored to his position hereunder or to an equivalent position, as the Company maydetermine, and the Term of Executive’s employment hereunder shall be reinstated effective upon suchrestoration. The Term shall not be extended by reason of such intervening leave of absence, norshall any compensation or benefits accrue in excess of those required by law during suchintervening leave of absence. Upon the expiration of any such rights, unless Executive has beenrestored to a position with the Company, he shall thereupon be considered terminated.     Executive acknowledges that the payments referred to in this Section 4.4, together with anyrights or benefits under any written plan or agreement which have vested on or prior to thetermination date of Executive’s employment under this Section 4.4, constitute the only paymentswhich Executive (or his legal representative, as the case may be) shall be entitled to receive fromthe Company hereunder in the event of a termination of his employment for death or Disability, andthe Company shall have no further liability or obligation to him (or his legal representatives, asthe case may be) hereunder or otherwise in respect of his employment.     4.5 No Mitigation by Executive. Except as otherwise expressly provided herein,Executive shall not be required to mitigate the amount of any payment provided for in thisAgreement by seeking other employment or otherwise, nor shall the amount of any payment providedfor herein be reduced by any compensation earned by Executive as the result of employment byanother employer; provided, however, that if Executive is or becomes employed withanother employer and is eligible to receive health and/or medical benefits under such otheremployer’s plans, Executive’s continued benefits and/or plan coverage as set forth in Section 4.2or 4.3, as the case may be, shall be reduced to the extent that comparable benefits and/or coverageis provided under such other employer’s plans.
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     4.6 Severance Agreement and Release. In the event that Executive’s employmenthereunder is terminated pursuant to (i) a Termination Without Cause (as defined in Section 4.2above), or (ii) a Termination With Good Reason (as defined in Section 4.3 above), payment by theCompany of the amounts described in said sections shall be subject to the execution and delivery tothe Company by Executive of the Company’s standard severance agreement and release (the “Release”)within the applicable time period described below.     The Release shall be delivered to Executive, in the case of a Termination Without Cause, atthe time of delivery of the Termination Notice, and, in the case of a Termination With Good Reason,upon delivery of written notice by the Executive to the Company. Executive shall have a period oftwenty-one (21) days (or, if required by applicable law, a period of forty-five (45) days) afterthe effective date of termination of Executive’s employment hereunder (the “Consideration Period”)in which to execute and return the original, signed Release to the Company. If Executive deliversthe original, signed Release to the Company prior to the expiration of the Consideration Period anddoes not thereafter revoke such Release within any period of time provided therefor underapplicable law, Executive shall, subject to Sections 4.7, 4.10 and 5.3 below, be entitled to theSeverance Payment as described in Section 4.2 (including by reason of Section 4.3, if applicable).     If Executive does not deliver the original, signed Release to the Company prior to theexpiration of the Consideration Period, or if Executive delivers the original, signed Release tothe Company prior to the expiration of the Consideration Period and thereafter revokes such Releasewithin any period of time provided therefor under applicable law, then: (a) the Company shall pay Executive an amount equal to the sum of (i) any BaseSalary and vacation time accrued but unpaid as of the date of termination, plus (ii)any reimbursement for expenses incurred in accordance with Section 3.2, plus (ii) anyUnpaid Bonus described in Section 4.2(c) above; and  (b) the Company shall have no obligation to pay to Executive the Severance Payment(as that term is defined in Section 4.2(b) above) or the Benefits Payments (as thatterm is defined in Section 4.2).     4.7 Continued Compliance. Executive and the Company hereby acknowledge that anySeverance Payments and Benefits Payments payable by the Company under Section 4.2 (including byreason of Section 4.3) are part of the consideration for Executive’s undertakings under Article Vbelow. Such amounts are subject to Executive’s continued compliance with the provisions of ArticleV. If Executive violates the provisions of Article V, then the Company will have no obligation tomake any of the Severance Payments or Benefits Payments that remain payable by the Company underSection 4.2 (including by reason of Section 4.3) on or after the date of such violation.     4.8 Change in Control. For purposes of this Agreement, a “Change in Control” meansany of the following that otherwise meets the definition of a “change in ownership,” a “change ineffective control” or a “change in ownership of a substantial portion of the assets” of the Companywithin the meaning of Section 409A of the Internal Revenue Code of 1986, as amended, including anyTreasury regulations promulgated thereunder and any guidance issued by the Internal Revenue Servicewith respect thereto (hereinafter, the “Code”):
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(a) the acquisition by any person or group (excluding John C. Malone and/or any familymember(s) of John C. Malone and/or any company, partnership, trust or other entity orinvestment vehicle controlled by any of the foregoing persons or the holdings of which arefor the primary benefit or any of such persons (collectively, the “Permitted Holders”)) ofownership of stock of the Company that, together with stock already held by such person orgroup, constitutes more than 50% of the total fair market value or more than 50% of thetotal voting power of the stock of the Company;(b) the acquisition by any person or group (other than the Permitted Holders), in a singletransaction or in multiple transactions all occurring during the 12-month period ending onthe date of the most recent acquisition by such person or group, assets from the Companythat have a total gross fair market value equal to or exceeding 40% of the total gross fairmarket value of all of the assets of the Company immediately prior to such acquisition oracquisitions; or(c) the acquisition by any person or group (other than the Permitted Holders), in a singletransaction or in multiple transactions all occurring during the 12-month period ending onthe date of the most recent acquisition by such person or group, of ownership of stock ofthe Company possessing 30 percent or more of the total voting power of the stock of theCompany or the replacement of a majority of the Company’s Board of Directors during any12-month period by directors whose appointment or election is not endorsed by a majority ofthe members of the Company’s Board of Directors before the date of appointment or election.     For purposes of this Section 4.8, “person” and “group” have the meanings given to them forpurposes of Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the“Exchange Act”), or any successor provisions, and the term “group” includes any group acting forthe purpose of acquiring, holding or disposing of securities within the meaning of rule 13d-5(b)(1)under the Exchange Act, or any successor provision.     4.9 Certain Additional Payments. Anything in this Agreement to the contrarynotwithstanding and except as set forth below, in the event it shall be determined that any paymentor distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of theCode) to or for the benefit of Executive, whether paid or payable or distributed or distributablepursuant to the terms of this Agreement or otherwise (including, without limitation, any equitygrants made pursuant to the Ascent Media Corporation 2008 Incentive Plan), but determined withoutregard to any additional payments required under this Section 4.9 (the “Payment”), would be subjectto the excise tax imposed by Section 4999 of the Code, together with any interest or penaltiesimposed with respect to such excise tax ( “Excise Tax”), then Executive shall be entitled toreceive an additional payment (a “Gross-Up Payment”) in an amount such that, after payment (whetherthrough withholding at the source or otherwise) by Executive of all taxes (including any interestor penalties imposed with respect to such taxes), including, without limitation, any income taxes(and any interest and penalties imposed with respect thereto), employment taxes and Excise Taximposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to theExcise Tax imposed upon the Payment.     Subject to the provisions of this Section 4.9, all determinations required to be made underthis Section 4.9, including whether and when a Gross-Up Payment is required and the amount of suchGross-Up Payment and the assumptions to be utilized in arriving at such determination, shall
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be made by a nationally recognized certified public accounting firm that is mutually agreedupon by the Company and Executive (the “Accounting Firm”) which shall provide detailed supportingcalculations both to the Company and Executive within 15 business days after the receipt of noticefrom Executive that there has been a Payment, or such earlier time as is requested by the Company.In the event that the Accounting Firm is serving as accountant or auditor for the individual,entity or group effecting the Change in Control or the Accounting Firm declines or is unable toserve, Executive shall appoint another nationally recognized certified public accounting firm tomake the determinations required hereunder (which accounting firm shall then be referred to as theAccounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely bythe Company. Any Gross-Up Payment, as determined pursuant to this Section 4.9, shall be paid bythe Company to Executive within 15 days after the receipt of the Accounting Firm’s determination.If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall furnishExecutive with a written opinion that failure to report the Excise Tax on Executive’ s applicablefederal income tax return would not result in the imposition of negligence or similar penalty. Anydetermination by the Accounting Firm shall be binding upon the Company and Executive. As a resultof the uncertainty in the application of Section 4999 of the Code at the time of the initialdetermination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which willnot have been made by the Company should have been made (“Underpayment”), consistent with thecalculations required to be made hereunder. In the event that the Company exhausts its remediespursuant to the following provisions of this Section 4.9 and Executive thereafter is required tomake a payment of any Excise Tax, the Accounting Firm shall determine the amount of theUnderpayment that has occurred and any such Underpayment shall be promptly paid by the Company toor for the benefit of Executive.     Executive shall notify the Company in writing of any claim by the Internal Revenue Servicethat, if successful, would require the payment by the Company of the Gross-Up Payment. Suchnotification shall be given as soon as practicable but no later than 10 business days afterExecutive is informed in writing of such claim and shall apprise the Company of the nature of suchclaim and the date on which such claim is requested to be paid. Executive shall not pay such claimprior to the expiration of the 30-day period following the date on which it gives such notice tothe Company (or such shorter period ending on the date that any payment of taxes with respect tosuch claim is due). If the Company notifies Executive in writing prior to the expiration of suchperiod that it desires to contest such claim, Executive shall: (a) give the Company any information reasonably requested by theCompany relating to such claim;  (b) take such action in connection with contesting such claim as theCompany shall reasonably request in writing from time to time, including,without limitation, accepting legal representation with respect to such claim byan attorney reasonably selected by the Company;  (c) cooperate with the Company in good faith in order to effectivelycontest such claim; and  (d) permit the Company to participate in any proceedings relating to such claim;
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provided, however, that the Company shall bear and pay directly all costs andexpenses (including additional interest and penalties) incurred in connection with such contest andshall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, employmenttax or income tax (including interest and penalties with respect thereto) imposed as a result ofsuch representation and payment of costs and expenses. Without limitation of the foregoingprovisions of this Section 4.9, the Company shall control all proceedings taken in connection withsuch 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 sue for a refund or contestthe claim in any permissible manner, and Executive agrees to prosecute such contest to adetermination before any administrative tribunal, in a court of initial jurisdiction and in one ormore appellate courts, as the Company shall determine; *provided, however*, that if the Companydirects Executive to pay such claim and sue for a refund, the Company shall provide the amount ofsuch payment to Executive as an additional payment (“Supplemental Payment”) (subject to possiblerepayment as provided in the next paragraph) and shall indemnify and hold Executive harmless, on anafter-tax basis, from any Excise Tax, employment tax or income tax (including interest or penaltieswith respect thereto) imposed with respect to such payment or with respect to any imputed incomewith respect thereto; and further provided that any extension of the statute of limitationsrelating to payment of taxes for the taxable year of Executive with respect to which such contestedamount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’scontrol of the contest shall be limited to issues with respect to which a Gross-Up Payment orSupplemental Payment would be payable hereunder and Executive shall be entitled to settle orcontest, as the case may be, any other issue raised by the Internal Revenue Service or any othertaxing authority.     If, after the receipt by Executive of an amount provided by the Company pursuant to theforegoing provisions of this Section 4.9, Executive becomes entitled to receive any refund withrespect to such claim, Executive shall (subject to the Company complying with the requirements ofthis Section 4.9) promptly pay to the Company the amount of such refund (together with any interestpaid or credited thereon after taxes applicable thereto)     Notwithstanding anything in this Section 4.9 to the contrary, in accordance with TreasuryRegulation § 1.409A-3(i)(1)(v), in no event shall the Company pay Executive (or pay on Executive’sbehalf) any amount to which Executive is entitled under this Section later than the end ofExecutive’s taxable year next following Executive’s taxable year in which Executive remits theExcise Tax or tax (as applicable) to the Internal Revenue Service (or in the case of costs andexpenses payable under this Section, no later than the end of Executive’s taxable year nextfollowing Executive’s taxable year in which the taxes that are the subject of the audit orlitigation are remitted to the Internal Revenue Service, or where as a result of such audit orlitigation no taxes are remitted, the end of Executive’s taxable year next following Executive’staxable year in which the audit is completed or there is a final and nonappealable settlement orother resolution of the litigation).     4.10 Timing of Payments Under Certain Circumstances. With respect to any amount thatbecomes payable to or for the benefit of Executive under this Agreement upon Executive’s Separationfrom Service (as defined below) for any reason, the provisions of this Section 4.10 will apply,notwithstanding any other provision of this Agreement to the contrary. If the Company determinesin good faith that Executive is a “specified employee” within the meaning of Section 409A of theInternal Revenue Code, any Treasury regulations promulgated thereunder and any
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guidance issued by the Internal Revenue Service relating thereto (collectively, “Code Section409A”), then to the extent required under Code Section 409A, payment of any amount of deferredcompensation that becomes payable to or for the benefit of Executive upon Separation from Service(other than by reason of the death of Executive) and that otherwise would be payable during thesix-month period following Executive’s Separation from Service shall be suspended until the lapseof such six-month period (or, if earlier, the date of Executive’s death). A “Separation fromService” of Executive means Executive’s separation from service, as defined in Code Section 409A,with the Company and all other entities with which the Company would be considered a singleemployer under Internal Revenue Code Section 414(b) or (c), applying the 80% threshold used in suchInternal Revenue Code Sections or any Treasury regulations promulgated thereunder. Any paymentsuspended as provided in this Section 4.10, unadjusted for interest on such suspended payment,shall be paid to Executive in a single payment on the first business day following the end of suchsix-month period or within 30 days following the death of Executive, as applicable, provided thatthe death of Executive during such six-month period shall not cause the acceleration of any amountthat otherwise would be payable on any date during such six-month period following the date ofExecutive’s death.ARTICLE VOWNERSHIP OF PROCEEDS OF EMPLOYMENT; NON-DISCLOSURE;