Common use of Adjustments in Respect of the Payment Cap Clause in Contracts

Adjustments in Respect of the Payment Cap. If the Executive receives reduced payments and benefits under this Section 7(e) (or this Section 7(e) is determined not to be applicable to the Executive because the Accountants conclude that Executive is not subject to any Excise Tax) and it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding (a "Final Determination") that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, the aggregate "parachute payments" within the meaning of Section 280G of the Code paid to the Executive or for the Executive's benefit are in an amount that would result in the Executive being subject an Excise Tax, then the Accountants shall determine whether the Executive should have received the Tax Reimbursement Payment described in Section 7(e)(i). If the Tax Reimbursement Payment would have been due, the Accountants shall determine the amount of any interest and penalties that may be imposed on the Executive by reason having failed to have timely paid any Excise Tax (the "Penalty Amount"), and the amount of the Tax Reimbursement Payment due, treating the Penalty Amount as a Covered Payment. In the event a Tax Reimbursement Payment is due, the Company shall promptly (but in no event later than ten (10) business days after the Accountants have determined and informed the Company of the amounts due hereunder) pay the Executive such Tax Reimbursement Payment (as calculated in accordance with the immediately preceding sentence) and the Penalty Amount. For greater clarity, if the Executive receives increased payments and benefits under this Section 7(e)(i), then this Section 7(e)(iv) shall not apply.

Adjustments in Respect of the Payment Cap. If the Executive receives reduced payments and benefits under this Section 7(e) (or 7(e)(or this Section 7(e) is determined not to be applicable to the Executive because the Accountants conclude that Executive is not subject to any Excise Tax) and it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding (a "Final Determination") that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, the aggregate "parachute payments" within the meaning of Section 280G of the Code paid to the Executive or for the Executive's his benefit are in an amount that would result in the Executive Executive's being subject to an Excise Tax, then the Accountants shall determine whether any amounts actually paid to or on behalf of the Executive should which are treated as excess parachute payments shall be deemed for all purposes to be a loan to the Executive made on the date of receipt of such excess payments, which the Executive shall have received an obligation to repay to the Tax Reimbursement Payment described Company on demand, together with interest on such amount at the applicable Federal rate (as defined in Section 7(e)(i)1274(d) of the Code) from the date of the payment hereunder to the date of repayment by the Executive. If the Tax Reimbursement Payment would have been due, the Accountants shall determine the amount Executive receives reduced payments and benefits by reason of any interest this Section 7(e) and penalties it is established pursuant to a Final Determination that may be imposed on the Executive by reason having failed to could have timely paid any Excise Tax (received a greater amount without exceeding the "Penalty Amount")Payment Cap, and the amount of the Tax Reimbursement Payment due, treating the Penalty Amount as a Covered Payment. In the event a Tax Reimbursement Payment is due, then the Company shall promptly (but in no event later than ten (10) business days after the Accountants have determined and informed the Company of the amounts due hereunder) thereafter pay the Executive the aggregate additional amount which could have been paid without exceeding the Payment Cap, together with interest on such Tax Reimbursement Payment amount at the applicable Federal rate (as calculated defined in accordance with Section 1274(d) of the immediately preceding sentenceCode) and from the Penalty Amount. For greater clarity, if original payment due date to the Executive receives increased payments and benefits under this Section 7(e)(i), then this Section 7(e)(iv) shall not applydate of actual payment by the Company.

Adjustments in Respect of the Payment Cap. If the Executive receives reduced payments and benefits under this Section 7(e) (or this Section 7(e) is determined not to be applicable to the Executive because the Accountants conclude that the Executive is not subject to any Excise Tax) and it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding (a "“Final Determination"”) that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, the aggregate "“parachute payments" ” within the meaning of Section 280G of the Code paid to the Executive or for the Executive's his benefit are in an amount that would result in the Executive being subject an Excise Tax, then the Accountants amount equal to such excess parachute payments shall determine whether be deemed for all purposes to be a loan to the Executive should made on the date of receipt of such excess payments, which the Executive shall have an obligation to repay to the Company on demand, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the date of the payment hereunder to the date of repayment by the Executive. If this Section 7(e) is not applied to reduce the Executive’s entitlement under this Section 7 because the Accountants determine that the Executive would not receive a greater net-after tax benefit by applying this Section 7(e) and it is established pursuant to a Final Determination that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, the Executive would have received a greater net after tax benefit by subjecting his payments and benefits hereunder to the Tax Reimbursement Payment described Cap, then the aggregate “parachute payments” paid to the Executive or for his benefit in excess of the Payment Cap shall be deemed for all purposes a loan to the Executive made on the date of receipt of such excess payments, which the Executive shall have an obligation to repay to the Company on demand, together with interest on such amount at the applicable Federal rate (as defined in Section 7(e)(i)1274(d) of the Code) from the date of the payment hereunder to the date of repayment by the Executive. If the Tax Reimbursement Payment would have been due, the Accountants shall determine the amount Executive receives reduced payments and benefits by reason of any interest this Section 7(e) and penalties it is established pursuant to a Final Determination that may be imposed on the Executive by reason having failed to could have timely paid any Excise Tax (received a greater amount without exceeding the "Penalty Amount")Payment Cap, and the amount of the Tax Reimbursement Payment due, treating the Penalty Amount as a Covered Payment. In the event a Tax Reimbursement Payment is due, then the Company shall promptly (but in no event later than ten (10) business days after the Accountants have determined and informed the Company of the amounts due hereunder) thereafter pay the Executive the aggregate additional amount which could have been paid without exceeding the Payment Cap, together with interest on such Tax Reimbursement Payment amount at the applicable Federal rate (as calculated defined in accordance with Section 1274(d) of the immediately preceding sentenceCode) and from the Penalty Amount. For greater clarity, if original payment due date to the Executive receives increased payments and benefits under this Section 7(e)(i), then this Section 7(e)(iv) shall not applydate of actual payment by the Company.

Adjustments in Respect of the Payment Cap. If the Executive receives reduced payments and benefits under this Section 7(e) (or this Section 7(e) is determined not to be applicable to the Executive because the Accountants conclude that Executive is not subject to any Excise Tax) and it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding (a "Final Determination") that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, the aggregate "parachute payments" within the meaning of Section 280G of the Code paid to the Executive or for the Executive's benefit are in an amount that would result in the Executive being subject to an Excise Tax, then the Accountants shall determine whether the Executive should have received the Tax Reimbursement Payment described in Section 7(e)(i), or whether the amounts payable to the Executive hereunder would still have been reduced pursuant to Section 7(e)(i). If the Tax Reimbursement Payment would have been due, the Accountants shall determine the amount of any interest and penalties that may be imposed on the Executive by reason of having failed to have timely paid any Excise Tax (the "Penalty Amount"), and the amount of the Tax Reimbursement Payment due, treating the Penalty Amount as a Covered Payment. In the event a Tax Reimbursement Payment is due, the Company shall promptly (but in no event later than ten (10) 10 business days after the Accountants have determined and informed the Company of the amounts due hereunderCompany) pay the Executive such Tax Reimbursement Payment (as calculated in accordance with the immediately preceding sentence) and the Penalty Amount. If the Executive would still be subject to a reduction in the Covered Payments due hereunder, the Accountants shall determine the amount by which the Covered Payments exceeded the Cap Amount and the Executive shall have an obligation (to the extent permitted under applicable law) to repay such excess to the Company on demand, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the date of the payment hereunder to the date of repayment by the Executive. It is expressly understood that such excess is not in the nature of a personal loan to the Executive, but rather a payment made to the Executive as a "mistake in fact." If the Executive receives reduced payments and benefits by reason of this Section 7(e) and it is established pursuant to a Final Determination that the Executive could have received a greater amount without exceeding the Cap Amount, then the Company shall promptly thereafter pay the Executive the aggregate additional amount which could have been paid without exceeding the Cap Amount, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the original payment due date to the date of actual payment by the Company. For greater clarity, if the Executive receives increased payments and benefits a Tax Reimbursement Payment under this Section 7(e)(i), then this Section 7(e)(iv7(e)(iii) shall not apply.

Adjustments in Respect of the Payment Cap. If the Executive receives reduced payments and benefits under this Section 7(e) (or this Section 7(e) is determined not to be applicable to the Executive because the Accountants conclude that Executive is not subject to any Excise Tax) and it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding (a "Final Determination") that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, the aggregate "parachute payments" within the meaning of Section 280G of the Code paid to the Executive or for the Executive's benefit are in an amount that would result in the Executive being subject an Excise Tax, then the Accountants shall determine whether the Executive should have received the Tax Reimbursement Payment described in Section 7(e)(i), or whether the amounts payable to the Executive hereunder would still have been reduced pursuant to Section 7(e)(i). If the Tax Reimbursement Payment would have been due, the Accountants shall determine the amount of any interest and penalties that may be imposed on the Executive by reason having failed to have timely paid any Excise Tax (the "Penalty Amount"), and the amount of the Tax Reimbursement Payment due, treating the Penalty Amount as a Covered Payment. In the event a Tax Reimbursement Payment is due, the Company shall promptly (but in no event later than ten (10) business days after the Accountants have determined and informed the Company of the amounts due hereunder) pay the Executive such Tax Reimbursement Payment (as calculated in accordance with the immediately preceding sentence) and the Penalty Amount. If the Executive would still be subject to a reduction in the Covered Payments due hereunder, the Accountants shall determine the amount by which the Covered Payments exceeded the Cap Amount and such excess parachute payments shall be deemed for all purposes to be a loan to the Executive made on the date of receipt of such excess payments, which the Executive shall have an obligation to repay to the Company on demand, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the date of the payment hereunder to the date of repayment by the Executive. If the Executive receives reduced payments and benefits by reason of this Section 7(e) and it is established pursuant to a Final Determination that the Executive could have received a greater amount without exceeding the Cap Amount, then the Company shall promptly thereafter pay the Executive the aggregate additional amount which could have been paid without exceeding the Cap Amount, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the original payment due date to the date of actual payment by the Company. For greater clarity, if the Executive receives increased payments and benefits under this Section 7(e)(i), then this Section 7(e)(iv) shall not apply.

Adjustments in Respect of the Payment Cap. If the ----------------------------------------------- Executive receives reduced payments and benefits under this Section 7(e) (or this Section 7(e) is determined not to be applicable to the Executive because the Accountants conclude that the Executive is not subject to any Excise Tax) and it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding (a "Final Determination") that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, the aggregate "parachute payments" within the meaning of Section 280G of the Code paid to the Executive or for the Executive's his benefit are in an amount that would result in the Executive being subject an Excise Tax, then the Accountants amount equal to such excess parachute payments shall determine whether be deemed for all purposes to be a loan to the Executive should made on the date of receipt of such excess payments, which the Executive shall have an obligation to repay to the Company on demand, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the date of the payment hereunder to the date of repayment by the Executive. If this Section 7(e) is not applied to reduce the Executive's entitlement under this Section 7 because the Accountants determine that the Executive would not receive a greater net-after tax benefit by applying this Section 7(e) and it is established pursuant to a Final Determination that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, the Executive would have received a greater net after tax benefit by subjecting his payments and benefits hereunder to the Tax Reimbursement Payment described Cap, then the aggregate "parachute payments" paid to the Executive or for his benefit in excess of the Payment Cap shall be deemed for all purposes a loan to the Executive made on the date of receipt of such excess payments, which the Executive shall have an obligation to repay to the Company on demand, together with interest on such amount at the applicable Federal rate (as defined in Section 7(e)(i)1274(d) of the Code) from the date of the payment hereunder to the date of repayment by the Executive. If the Tax Reimbursement Payment would have been due, the Accountants shall determine the amount Executive receives reduced payments and benefits by reason of any interest this Section 7(e) and penalties it is established pursuant to a Final Determination that may be imposed on the Executive by reason having failed to could have timely paid any Excise Tax (received a greater amount without exceeding the "Penalty Amount")Payment Cap, and the amount of the Tax Reimbursement Payment due, treating the Penalty Amount as a Covered Payment. In the event a Tax Reimbursement Payment is due, then the Company shall promptly (but in no event later than ten (10) business days after the Accountants have determined and informed the Company of the amounts due hereunder) thereafter pay the Executive the aggregate additional amount which could have been paid without exceeding the Payment Cap, together with interest on such Tax Reimbursement Payment amount at the applicable Federal rate (as calculated defined in accordance with Section 1274(d) of the immediately preceding sentenceCode) and from the Penalty Amount. For greater clarity, if original payment due date to the Executive receives increased payments and benefits under this Section 7(e)(i), then this Section 7(e)(iv) shall not applydate of actual payment by the Company.

Adjustments in Respect of the Payment Cap. If the Executive receives reduced payments and benefits under this Section 7(e6(d) (or this Section 7(e6(d) is determined not to be applicable to the Executive because the Accountants conclude that Executive is not subject to any Excise Tax) and it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding (a "“Final Determination"”) that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, the aggregate "“parachute payments" ” within the meaning of Section Code section 280G of the Code paid to the Executive or for the Executive's ’s benefit are in an amount that would result in the Executive being subject to an Excise Tax, then the Accountants shall determine whether the Executive should have received the Tax Reimbursement Payment described in Section 7(e)(i6(d)(i), or whether the amounts payable to the Executive hereunder would still have been reduced pursuant to Section 6(d)(i). If the Tax Reimbursement Payment would have been due, the Accountants shall determine the amount of any interest and penalties that may be imposed on the Executive by reason of having failed to have timely paid any Excise Tax (the "“Penalty Amount"”), and the amount of the Tax Reimbursement Payment due, treating the Penalty Amount as a Covered Payment. In the event a Tax Reimbursement Payment is due, the Company shall promptly (but in no event later than ten (10) 10 business days after the Accountants have determined and informed the Company of the amounts due hereunderCompany) pay the Executive such Tax Reimbursement Payment (as calculated in accordance with the immediately preceding sentence) and the Penalty Amount. If the Executive would still be subject to a reduction in the Covered Payments due hereunder, the Accountants shall determine the amount by which the Covered Payments exceeded the Cap Amount and the Executive shall have an obligation (to the extent permitted under applicable law) to repay such excess to the Company on demand, together with interest on such amount at the applicable Federal rate (as defined in Code section 1274(d)) from the date of the payment hereunder to the date of repayment by the Executive. It is expressly understood that such excess is not in the nature of a personal loan to the Executive, but rather a payment made to the Executive as a “mistake in fact.” If the Executive receives reduced payments and benefits by reason of this Section 6(d) and it is established pursuant to a Final Determination that the Executive could have received a greater amount without exceeding the Cap Amount, then the Company shall promptly thereafter pay the Executive the aggregate additional amount which could have been paid without exceeding the Cap Amount, together with interest on such amount at the applicable Federal rate (as defined in Code section 1274(d)) from the original payment due date to the date of actual payment by the Company. For greater clarity, if the Executive receives increased payments and benefits a Tax Reimbursement Payment under this Section 7(e)(i6(d)(i), then this Section 7(e)(iv6(d)(iii) shall not apply.

Adjustments in Respect of the Payment Cap. If the Executive receives reduced payments and benefits under this Section 7(e) (or this Section 7(e) is determined not to be applicable to the Executive because the Accountants conclude that Executive is not subject to any Excise Tax) and it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding (a "Final Determination") that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, the aggregate "parachute payments" within the meaning of Section 280G of the Code paid to the Executive or for the Executive's his benefit are in an amount that would result in the Executive being subject an Excise TaxTax and the Executive would still be subject to the Payment Cap under the provisions of Section 7(e)(iii), then the Accountants amount equal to such excess parachute payments shall determine whether be deemed for all purposes to be a loan to the Executive should made on the date of receipt of such excess payments, which the Executive shall have an obligation to repay to the Company on demand, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the date of the payment hereunder to the date of repayment by the Executive. If this Section 7(e) is not applied to reduce the Executive's entitlements under this Section 7 because the Accountants determine that the Executive would not receive a greater net-after tax benefit by applying this Section 7(e) and it is established pursuant to a Final Determination that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, the Executive would have received a greater net after tax benefit by subjecting his payments and benefits hereunder to the Tax Reimbursement Payment described Cap, then the aggregate "parachute payments" paid to the Executive or for his benefit in excess of the Payment Cap shall be deemed for all purposes a loan to the Executive made on the date of receipt of such excess payments, which the Executive shall have an obligation to repay to the Company on demand, together with interest on such amount at the applicable Federal rate (as defined in Section 7(e)(i)1274(d) of the Code) from the date of the payment hereunder to the date of repayment by the Executive. If the Tax Reimbursement Payment would have been due, the Accountants shall determine the amount Executive receives reduced payments and benefits by reason of any interest this Section 7(e) and penalties it is established pursuant to a Final Determination that may be imposed on the Executive by reason having failed to could have timely paid any Excise Tax (received a greater amount without exceeding the "Penalty Amount")Payment Cap, and the amount of the Tax Reimbursement Payment due, treating the Penalty Amount as a Covered Payment. In the event a Tax Reimbursement Payment is due, then the Company shall promptly (but in no event later than ten (10) business days after the Accountants have determined and informed the Company of the amounts due hereunder) thereafter pay the Executive the aggregate additional amount which could have been paid without exceeding the Payment Cap, together with interest on such Tax Reimbursement Payment amount at the applicable Federal rate (as calculated defined in accordance with Section 1274(d) of the immediately preceding sentenceCode) and from the Penalty Amount. For greater clarity, if original payment due date to the Executive receives increased payments and benefits under this Section 7(e)(i), then this Section 7(e)(iv) shall not applydate of actual payment by the Company.

Adjustments in Respect of the Payment Cap. If the Executive receives reduced payments and benefits under this Section 7(e) (or this Section 7(e) is determined not to be applicable to the Executive because the Accountants conclude that Executive is not subject to any Excise Tax) and it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding (a "“Final Determination"”) that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, the aggregate "“parachute payments" ” within the meaning of Section 280G of the Code paid to the Executive or for the Executive's ’s benefit are in an amount that would result in the Executive being subject to an Excise Tax, then the Accountants shall determine whether the Executive should have received the Tax Reimbursement Payment described in Section 7(e)(i), or whether the amounts payable to the Executive hereunder would still have been reduced pursuant to Section 7(e)(i). If the Tax Reimbursement Payment would have been due, the Accountants shall determine the amount of any interest and penalties that may be imposed on the Executive by reason of having failed to have timely paid any Excise Tax (the "“Penalty Amount"”), and the amount of the Tax Reimbursement Payment due, treating the Penalty Amount as a Covered Payment. In the event a Tax Reimbursement Payment is due, the Company shall promptly (but in no event later than ten (10) 10 business days after the Accountants have determined and informed the Company of the amounts due hereunderCompany) pay the Executive such Tax Reimbursement Payment (as calculated in accordance with the immediately preceding sentence) and the Penalty Amount. If the Executive would still be subject to a reduction in the Covered Payments due hereunder, the Accountants shall determine the amount by which the Covered Payments exceeded the Cap Amount and the Executive shall have an obligation (to the extent permitted under applicable law) to repay such excess to the Company on demand, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the date of the payment hereunder to the date of repayment by the Executive. It is expressly understood that such excess is not in the nature of a personal loan to the Executive, but rather a payment made to the Executive as a “mistake in fact.” If the Executive receives reduced payments and benefits by reason of this Section 7(e) and it is established pursuant to a Final Determination that the Executive could have received a greater amount without exceeding the Cap Amount, then the Company shall promptly thereafter pay the Executive the aggregate additional amount which could have been paid without exceeding the Cap Amount, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the original payment due date to the date of actual payment by the Company. For greater clarity, if the Executive receives increased payments and benefits a Tax Reimbursement Payment under this Section 7(e)(i), then this Section 7(e)(iv7(e)(iii) shall not apply.

Adjustments in Respect of the Payment Cap. If the Executive receives reduced payments and benefits under this Section 7(e) (or this Section 7(e) is determined not to be applicable to the Executive because the Accountants conclude that Executive is not subject to any Excise Tax) and it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding (a "Final DeterminationFINAL DETERMINATION") that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, the aggregate "parachute payments" within the meaning of Section 280G of the Code paid to the Executive or for the Executive's benefit are in an amount that would result in the Executive being subject to an Excise Tax, then the Accountants shall determine whether the Executive should have received the Tax Reimbursement Payment described in Section 7(e)(i), or whether the amounts payable to the Executive hereunder would still have been reduced pursuant to Section 7(e)(i). If the Tax Reimbursement Payment would have been due, the Accountants shall determine the amount of any interest and penalties that may be imposed on the Executive by reason of having failed to have timely paid any Excise Tax (the "Penalty AmountPENALTY AMOUNT"), and the amount of the Tax Reimbursement Payment due, treating the Penalty Amount as a Covered Payment. In the event a Tax Reimbursement Payment is due, the Company shall promptly (but in no event later than ten (10) 10 business days after the Accountants have determined and informed the Company of the amounts due hereunderCompany) pay the Executive such Tax Reimbursement Payment (as calculated in accordance with the immediately preceding sentence) and the Penalty Amount. If the Executive would still be subject to a reduction in the Covered Payments due hereunder, the Accountants shall determine the amount by which the Covered Payments exceeded the Cap Amount and the Executive shall have an obligation (to the extent permitted under applicable law) to repay such excess to the Company on demand, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the date of the payment hereunder to the date of repayment by the Executive. It is expressly understood that such excess is not in the nature of a personal loan to the Executive, but rather a payment made to the Executive as a "mistake in fact." If the Executive receives reduced payments and benefits by reason of this Section 7(e) and it is established pursuant to a Final Determination that the Executive could have received a greater amount without exceeding the Cap Amount, then the Company shall promptly thereafter pay the Executive the aggregate additional amount which could have been paid without exceeding the Cap Amount, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the original payment due date to the date of actual payment by the Company. For greater clarity, if the Executive receives increased payments and benefits a Tax Reimbursement Payment under this Section 7(e)(i), then this Section 7(e)(iv7(e)(iii) shall not apply.

Adjustments in Respect of the Payment Cap. If the Executive receives reduced payments and benefits under this Section 7(e) (or this Section 7(e) is determined not to be applicable to the Executive because the Accountants conclude that Executive is not subject to any Excise Tax) and it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding (a "Final Determination") that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, the aggregate "parachute payments" within the meaning of Section 280G of the Code paid to the Executive or for the Executive's benefit are in an amount that would result in the Executive being subject to an Excise Tax, then the Accountants shall determine whether the Executive should have received the Tax Reimbursement Payment described in Section 7(e)(i), or whether the amounts payable to the Executive hereunder would still have been reduced pursuant to Section 7(e)(i). If the Tax Reimbursement Payment would have been due, the Accountants shall determine the amount of any interest and penalties that may be imposed on the Executive by reason of having failed to have timely paid any Excise Tax (the "Penalty Amount"), and the amount of the Tax Reimbursement Payment due, treating the Penalty Amount as a Covered Payment. In the event a Tax Reimbursement Payment is due, the Company shall promptly (but in no event later than ten (10) 10 business days after the Accountants have determined and informed the Company of the amounts due hereunderCompany) pay the Executive such Tax Reimbursement Payment (as calculated in accordance with the immediately preceding sentence) and the Penalty Amount. If the Executive would still be subject to a reduction in the Covered Payments due hereunder, the Accountants shall determine the amount by which the Covered Payments exceeded the Cap Amount and the Executive shall have an obligation (to the extent permitted under applicable law) to repay such excess to the Company on demand, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the date of the payment hereunder to the date of repayment by the Executive. It is expressly understood that such excess is not in the nature of a personal loan to the Executive, but rather a payment made to the Executive as a "mistake in fact." If the Executive receives reduced payments and benefits by reason of this Section 7(e) and it is established pursuant to a Final Determination that the Executive could have received a greater amount without exceeding the Cap Amount, then the Company shall promptly thereafter pay the Executive the aggregate additional amount which could have been paid without exceeding the Cap Amount, together Exhibit 10.56 with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the original payment due date to the date of actual payment by the Company. For greater clarity, if the Executive receives increased payments and benefits a Tax Reimbursement Payment under this Section 7(e)(i), then this Section 7(e)(iv7(e)(iii) shall not apply.

Adjustments in Respect of the Payment Cap. If the Executive receives reduced payments and benefits under this Section 7(e) (or this Section 7(e) is determined not to be applicable to the Executive because the Accountants conclude that Executive is not subject to any Excise Tax) and it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding (a "Final Determination") that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, the aggregate "parachute payments" within the meaning of Section 280G of the Code paid to the Executive or for the Executive's benefit are in an amount that would result in the Executive being subject to an Excise Tax, then the Accountants shall determine whether the Executive should have received the Tax Reimbursement Payment described in Section 7(e)(i), or whether the amounts payable to the Executive hereunder would still have been reduced pursuant to Section 7(e)(i). If the Tax Reimbursement Payment would have been due, the Accountants shall determine the amount of any interest and penalties that may be imposed on the Executive by reason of having failed to have timely paid any Excise Tax (the "Penalty Amount"), and the amount of the Tax Reimbursement Payment due, treating the Penalty Amount as a Covered Payment. In the event a Tax Reimbursement Payment is due, the Company shall promptly (but in no event later than ten (10) 10 business days after the Accountants have determined and informed the Company of the amounts due hereunderCompany) pay the Executive such Tax Reimbursement Payment (as calculated in accordance with the immediately preceding sentence) and the Penalty Amount. If the Executive would still be subject to a reduction in the Covered Payments due hereunder, the Accountants shall determine the amount by which the Covered Payments exceeded the Cap Amount and the Executive shall have an obligation (to the extent permitted under applicable law) to repay such excess to the Company on demand, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the date of the payment hereunder to the date of repayment by the Executive. It is expressly understood that such excess is not in the nature of a personal loan to the Executive, but rather a payment made to the Executive as a "mistake in fact." If the Executive receives reduced payments and benefits by reason of this Section 7(e) and it is established pursuant to a Final Determination that the Executive could have received a greater amount without exceeding the Cap Amount, then the Company shall promptly thereafter pay the Executive the aggregate additional amount which could have been paid without exceeding the Cap Amount, together Exhibit 10.52 with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the original payment due date to the date of actual payment by the Company. For greater clarity, if the Executive receives increased payments and benefits a Tax Reimbursement Payment under this Section 7(e)(i), then this Section 7(e)(iv7(e)(iii) shall not apply.

Adjustments in Respect of the Payment Cap. If the Executive receives reduced payments and benefits under this Section 7(e) (or this Section 7(e) is determined not to be applicable to the Executive because the Accountants conclude that Executive is not subject to any Excise Tax) and it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding (a "“Final Determination"”) that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, the aggregate "“parachute payments" ” within the meaning of Section 280G of the Code paid to the Executive or for the Executive's ’s benefit are in an amount that would result in the Executive being subject to an Excise Tax, then the Accountants shall determine whether the Executive should have received the Tax Reimbursement Payment described in Section 7(e)(i), or whether the amounts payable to the Executive hereunder would still have been reduced pursuant to Section 7(e)(i). If the Tax Reimbursement Payment would have been due, the Accountants shall determine the amount of any interest and penalties that may be imposed on the Executive by reason of having failed to have timely paid any Excise Tax (the "“Penalty Amount"”), and the amount of the Tax Reimbursement Payment due, treating the Penalty Amount as a Covered Payment. In the event a Tax Reimbursement Payment is due, the Company shall promptly (but in no event later than ten (10) 10 business days after the Accountants have determined and informed the Company of the amounts due hereunderCompany) pay the Executive such Tax Reimbursement Payment (as calculated in accordance with the immediately preceding sentence) and the Penalty Amount. If the Executive would still be subject to a reduction in the Covered Payments due hereunder, the Accountants shall determine the amount by which the Covered Payments exceeded the Cap Amount and the Executive shall have an obligation (to the extent permitted under applicable law) to repay such excess to the Company on demand, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the date of the payment hereunder to the date of repayment by the Executive. It is expressly understood that such excess is not in the nature of a personal loan to the Executive, but rather a payment made to the Executive as a “mistake in fact.” If the Executive receives reduced payments and benefits by reason of this Section 7(e) and it is established pursuant to a Final Determination that the Executive could have received a greater amount without exceeding the Cap Amount, then, to the extent permitted under Section 409A of the Code without any adverse tax consequences to the Executive under such Section, the Company shall promptly (and not later than 30 days) thereafter pay the Executive the aggregate additional amount which could have been paid without exceeding the Cap Amount, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the original payment due date to the date of actual payment by the Company. For greater clarity, if the Executive receives increased payments and benefits a Tax Reimbursement Payment under this Section 7(e)(i), then this Section 7(e)(iv7(e)(iii) shall not apply.

Adjustments in Respect of the Payment Cap. If the Executive receives reduced payments and benefits under this Section 7(eParagraph 7(d) (or this Section 7(eParagraph 7(d) is determined not to be applicable to the Executive because the Accountants conclude that Executive is not subject to any Excise Tax) and it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding (a "Final Determination") that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, the aggregate "parachute payments" within the meaning of Section 280G of the Code paid to the Executive or for the Executive's his benefit are in an amount that would result in the Executive being subject an Excise Tax, then the amount equal to such excess parachute payments shall be deemed for all purposes to be a loan to Executive made on the date of receipt of such excess payments, which Executive shall have an obligation to repay to the Company on demand, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the date of the payment hereunder to the date of repayment by Executive. If this Paragraph 7(d) is not applied to reduce Executive's entitlements under this Paragraph 7 because the Accountants shall determine whether that Executive would not receive a greater net-after tax benefit by applying this Paragraph 7(d) and it is established pursuant to a Final Determination that, notwithstanding the good faith of Executive should and the Company in applying the terms of this Agreement, Executive would have received a greater net after tax benefit by subjecting his payments and benefits hereunder to the Tax Reimbursement Payment described Cap, then the aggregate "parachute payments" paid to Executive or for his benefit in excess of the Payment Cap shall be deemed for all purposes a loan to Executive made on the date of receipt of such excess payments, which Executive shall have an obligation to repay to the Company on demand, together with interest on such amount at the applicable Federal rate (as defined in Section 7(e)(i)1274(d) of the Code) from the date of the payment hereunder to the date of repayment by Executive. If the Tax Reimbursement Payment would have been due, the Accountants shall determine the amount of any interest Executive receives reduced payments and penalties that may be imposed on the Executive benefits by reason having failed of this Paragraph 7(d) and it is established pursuant to a Final Determination that Executive could have timely paid any Excise Tax (received a greater amount without exceeding the "Penalty Amount")Payment Cap, and the amount of the Tax Reimbursement Payment due, treating the Penalty Amount as a Covered Payment. In the event a Tax Reimbursement Payment is due, then the Company shall promptly thereafter pay Executive the aggregate additional amount which could have been paid without exceeding the Payment Cap, together with interest on such amount at the applicable Federal rate (but as defined in no event later than ten (10Section 1274(d) business days after the Accountants have determined and informed the Company of the amounts Code) from the original payment due hereunder) pay date to the Executive such Tax Reimbursement Payment (as calculated in accordance with date of actual payment by the immediately preceding sentence) and the Penalty Amount. For greater clarity, if the Executive receives increased payments and benefits under this Section 7(e)(i), then this Section 7(e)(iv) shall not applyCompany.