Common use of Calculating the Cap Clause in Contracts

Calculating the Cap. If the Company believes that these rules will result in a reduction of the payments to which you are entitled under this Agreement, it will so notify you as soon as possible. The Company will then, at its expense, retain a “Consultant” (which shall be a law firm, a certified public accounting firm, and/or a firm of recognized executive compensation consultants) to provide a determination concerning whether your Basic Payments exceed the limit discussed above (the “Determination”). The Company will select the Consultant. At a minimum, the Determination required by this Section must set forth the amount of your Base Period Income, the value of the Basic Payments and the amount and present value of any excess parachute payments. If the Determination states that there would be an excess parachute payment, your payments under this Agreement will be reduced to the extent necessary to eliminate the excess. If the Consultant selected to provide the Determination so requests, a firm of recognized executive compensation consultants selected by the Company (which may, but is not required to be, the Consultant) shall provide an opinion, upon which such Consultant may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered before or after the Change in Control. If the Company believes that your Basic Payments will exceed the limitations of this Section, it will nonetheless make payments to you, at the times stated above, in the maximum amount that it believes may be paid without exceeding such limitations. The balance, if any, will then be paid after the opinions called for above have been received. If the amount paid to you by the Company is ultimately determined, pursuant to the Determination or by the Internal Revenue Service, to have exceeded the limitation of this Section, you must repay the excess promptly on demand of the Company. If it is ultimately determined, pursuant to the Determination or by the Internal Revenue Service, that a greater payment should have been made to you, the Company shall pay you the amount of the deficiency, together with interest thereon from the date such amount should have been paid to the date of such payment, at the rate set forth above, so that you will have received or be entitled to receive the maximum amount to which you are entitled under this Agreement. As a general rule, the Determination shall be binding on you and the Company. Section 280G and the excise tax rules of Section 4999, however, are complex and uncertain and, as a result, the Internal Revenue Service may disagree with the Consultant’s conclusions. If the Internal Revenue Service determines that the Cap is actually lower than calculated by the Consultant, the Cap will be recalculated by the Consultant. Any payment over that revised Cap will then be repaid by you to the Company. If the Internal Revenue Service determines that the actual Cap exceeds the amount calculated by the Consultant, the Company shall pay you any shortage. The Company has the right to challenge any determinations made by the Internal Revenue Service. If the Company agrees to indemnify you from any taxes, interest and penalties that may be imposed upon you (including any taxes, interest and penalties on the amounts paid pursuant to the Company’s indemnification agreement), you must cooperate fully with the Company in connection with any such challenge. The Company shall bear all costs associated with the challenge of any determination made by the Internal Revenue Service and the Company shall control all such challenges. You must notify the Company in writing of any claim or determination by the Internal Revenue Service that, if upheld, would result in the payment of excise taxes. Such notice shall be given as soon as possible but in no event later than 15 days following your receipt of notice of the Internal Revenue Service’s position.

Calculating the Cap. If the Company believes that these rules will result in a reduction of the payments to which you are entitled under this Agreement, it will so notify you as soon as possible. The Company will then, at its expense, retain a “Consultant” (which shall be a law firm, a certified public accounting firm, and/or a firm of recognized executive compensation consultants) to provide a determination concerning whether your Basic Payments exceed the limit discussed above (the “Determination”). The Company will select the Consultant. At a minimum, the Determination required by this Section must set forth the amount of your Base Period Income, the value of the Basic Payments and the amount and present value of any excess parachute payments. If the Determination states that there would be an excess parachute payment, your payments under this Agreement Basic Payments will be reduced to the extent necessary to eliminate the excess. In making such reduction, Accuride first will reduce the amount of your payments under this Agreement and, if necessary, any other payments to which you are entitled under any other arrangement that do not constitute “non-qualified deferred compensation” that is subject to Section 409A of the Code. Accuride will reduce the amount of any Basic Payments payable to you that are subject to Section 409A of the Code only to the extent reductions in addition to those described in the preceding sentence are necessary to avoid an excess parachute payment. If necessary, any Basic Payments which are subject to Section 409A of the Code shall be reduced proportionally to avoid an excess parachute payment. If the Consultant selected to provide the Determination so requests, a firm of recognized executive compensation consultants selected by the Company (which may, but is not required to be, the Consultant) shall provide an opinion, upon which such Consultant may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered before or after the Change in Control. If the Company believes that your Basic Payments will exceed the limitations of this Section, it will nonetheless make payments to you, at the times stated above, in the maximum amount that it believes may be paid without exceeding such limitations. The balance, if any, will then be paid after the opinions called for above have been received. If the amount paid to you by the Company is ultimately determined, pursuant to the Determination or by the Internal Revenue Service, to have exceeded the limitation of this Section, you must repay the excess promptly on demand of the Company. If it is ultimately determined, pursuant to the Determination or by the Internal Revenue Service, that a greater payment should have been made to you, the Company shall pay you the amount of the deficiency, together with interest thereon from the date such amount should have been paid to the date of such payment, at the rate set forth above, so that you will have received or be entitled to receive the maximum amount to which you are entitled under this Agreement. As a general rule, the Determination shall be binding on you and the Company. Section 280G and the excise tax rules of Section 4999, however, are complex and uncertain and, as a result, the Internal Revenue Service may disagree with the Consultant’s conclusions. If the Internal Revenue Service determines that the Cap is actually lower than calculated by the Consultant, the Cap will be recalculated by the Consultant. Any payment over that revised Cap will then be repaid by you to the Company. If the Internal Revenue Service determines that the actual Cap exceeds the amount calculated by the Consultant, the Company shall pay you any shortage. The Company has the right to challenge any determinations made by the Internal Revenue Service. If the Company agrees to indemnify you from any taxes, interest and penalties that may be imposed upon you (including any taxes, interest and penalties on the amounts paid pursuant to the Company’s indemnification agreement), you must cooperate fully with the Company in connection with any such challenge. The Company shall bear all costs associated with the challenge of any determination made by the Internal Revenue Service and the Company shall control all such challenges. You must notify the Company in writing of any claim or determination by the Internal Revenue Service that, if upheld, would result in the payment of excise taxes. Such notice shall be given as soon as possible but in no event later than 15 days following your receipt of notice of the Internal Revenue Service’s position.

Calculating the Cap. If the Company believes that these rules will result in a reduction of the payments to which you are entitled under this Agreement, it will so notify you as soon as possible. The Company will then, at its expense, retain a “"Consultant” " (which shall be a law firm, a certified public accounting firm, and/or a firm of recognized executive compensation consultants) to provide a determination an opinion or opinions concerning whether your Basic Payments exceed the limit discussed above (the “Determination”)above. The Company will select the Consultant. At a minimum, the Determination opinions required by this Section must set forth the amount of your Base Period Income, the value of the Basic Payments and the amount and present value of any excess parachute payments. If the Determination states opinions state that there would be an excess parachute payment, your payments under this Agreement will be reduced to the extent necessary to eliminate the excessexcess such that no excise tax will be payable under Section 4999 of the Code in respect of your Basic Payments. You will be allowed to choose the payment that should be reduced or eliminated, but the payment you choose to reduce or eliminate must be a payment determined by such Consultant to be includable in Basic Payments. You will make your decision in writing and deliver it to the Company within 30 days of your receipt of such opinions. If you fail to so notify the Company, it will decide which payments to reduce or eliminate. If the Consultant selected to provide the Determination opinions referred to above so requestsrequests in connection with the opinion required by this Section, a firm of recognized executive compensation consultants selected by the Company (which may, but is not required to be, the Consultant) shall provide an opinion, upon which such Consultant may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered before or after the Change in Control. If the Company believes that your Basic Payments will exceed the limitations of this Section, it will nonetheless make payments to you, at the times stated above, in the maximum amount that it believes may be paid without exceeding such limitations. The balance, if any, will then be paid after the opinions called for above have been received. If the amount paid to you by the Company is ultimately determined, pursuant to the Determination opinion referred to above or by the Internal Revenue Service, to have exceeded the limitation of this Section, you must repay the excess promptly will be treated as a loan to you by the Company and shall be repayable on the 90th day following demand by the Company, together with interest at the lowest "applicable federal rate" provided in Section 1274(d) of the CompanyCode. If it is ultimately determined, pursuant to the Determination opinion referred to above or by the Internal Revenue Service, that a greater payment should have been made to you, the Company shall pay you the amount of the deficiency, together with interest thereon from the date such amount should have been paid to the date of such payment, at the rate set forth above, so that you will have received or be entitled to receive the maximum amount to which you are entitled under this Agreement. As a general rule, the Determination shall be binding on you and the Company. Section 280G and the excise tax rules of Section 4999, however, are complex and uncertain and, as a result, the Internal Revenue Service may disagree with the Consultant’s conclusions. If the Internal Revenue Service determines that the Cap is actually lower than calculated by the Consultant, the Cap will be recalculated by the Consultant. Any payment over that revised Cap will then be repaid by you to the Company. If the Internal Revenue Service determines that the actual Cap exceeds the amount calculated by the Consultant, the Company shall pay you any shortage. The Company has the right to challenge any determinations made by the Internal Revenue Service. If the Company agrees to indemnify you from any taxes, interest and penalties that may be imposed upon you (including any taxes, interest and penalties on the amounts paid pursuant to the Company’s indemnification agreement), you must cooperate fully with the Company in connection with any such challenge. The Company shall bear all costs associated with the challenge of any determination made by the Internal Revenue Service and the Company shall control all such challenges. You must notify the Company in writing of any claim or determination by the Internal Revenue Service that, if upheld, would result in the payment of excise taxes. Such notice shall be given as soon as possible but in no event later than 15 days following your receipt of notice of the Internal Revenue Service’s position.

Calculating the Cap. If the Company believes that these rules will result in a reduction of the payments to which you are Executive is entitled under this Agreement, it will so notify you Executive as soon as possible. The Company will then, at its expense, retain a “Consultant” (which shall be a law firm, a certified public accounting firm, and/or a firm of recognized executive compensation consultants) to provide a determination concerning whether your the Basic Payments exceed the limit discussed above (the “Determination”). The Company will select the Consultant. At a minimum, the Determination required by this Section must set forth the amount of your Executive’s Base Period Income, the value of the Basic Payments Payments, and the amount and present value of any excess parachute payments. If the Determination states that there would be an excess parachute payment, your Executive’s payments under this Agreement will be reduced to the extent necessary to eliminate the excess. If the Consultant selected to provide the Determination so requests, a firm of recognized executive compensation consultants selected by the Company (which may, but is not required to be, the Consultant) shall provide an opinion, upon which such Consultant may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered before or after the Change in of Control. If the Company believes that your Executive’s Basic Payments will exceed the limitations of this Section, it will nonetheless make payments to youExecutive, at the times stated provided above, in the maximum amount that it believes may be paid without exceeding such limitations. The balance, if any, will then be paid after the opinions called for above have been received. If the amount paid to you Executive by the Company is ultimately determined, pursuant to the Determination or by the Internal Revenue Service, to have exceeded the limitation of this Section, you must Executive shall repay the excess promptly on demand of the Company. If it is ultimately determined, pursuant to the Determination or by the Internal Revenue Service, that a greater payment should have been made to youExecutive, the Company shall pay you Executive the amount of the deficiency, together with interest thereon from the date such amount should have been paid to the date of such payment, at the rate set forth above, so that you Executive will have received or be entitled to receive the maximum amount to which you are Executive is entitled under this Agreement. As a general rule, the Determination shall be binding on you upon Executive and the Company. Section 280G and the excise tax rules of Section 4999, however, are complex compex and uncertain and, as a result, the Internal Revenue Service may disagree with the Consultant’s conclusions. If the Internal Revenue Service determines that the Cap is actually lower than calculated by the Consultant, the Cap will be recalculated by the Consultant. Any payment over that revised Cap will then be repaid by you Executive to the Company. If the Internal Revenue Service determines that the actual Cap exceeds the amount calculated by the Consultant, the Company shall pay you Executive any shortage. The Company has the right to challenge any determinations made by the Internal Revenue Service. If the Company agrees to indemnify you from any taxes, interest and penalties that may be imposed upon you (including any taxes, interest and penalties on the amounts paid pursuant to the Company’s indemnification agreement), you must cooperate fully with the Company in connection with any such challenge. The Company shall bear all costs associated with the challenge of any determination made by the Internal Revenue Service and the Company shall control all such challenges. You must notify the Company in writing of any claim or determination by the Internal Revenue Service that, if upheld, would result in the payment of excise taxes. Such notice shall be given as soon as possible but in no event later than 15 days following your receipt of notice of the Internal Revenue Service’s position.

Calculating the Cap. If the Company Corporation believes that these rules will result in a reduction of the payments to which you are entitled under this Agreement, it will so notify you as soon as possible. The Company Corporation will then, at its expense, retain a “"Consultant” " (which shall be a law firm, a certified public accounting firm, and/or a firm of recognized executive compensation consultants) to provide a determination an opinion or opinions concerning whether your Basic Total Payments exceed the limit discussed above (the “Determination”)above. The Company Corporation will select the Consultant. At a minimum, the Determination opinions required by this Section must set forth the amount of your Base Period Income, the present value of the Basic Total Payments and the amount and present value of any excess parachute payments. If the Determination states opinions state that there would be an excess parachute payment, your payments under this Agreement will be reduced to the extent necessary to eliminate the excess. You will be allowed to choose the payment that should be reduced or eliminated, but the payment you choose to reduce or eliminate must be a payment determined by such Consultant to be includable in Total Payments. You will make your decision in writing and deliver it to the Corporation within 30 days of your receipt of such opinions. If you fail to so notify the Corporation, it will decide which payments to reduce or eliminate. If the Consultant selected to provide the Determination opinions referred to above so requestsrequests in connection with the opinion required by this Section, a firm of recognized executive compensation consultants selected by the Company (which may, but is not required to be, the Consultant) Corporation shall provide an opinion, upon which such Consultant may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered before or after the Change in of Control. If the Company Corporation believes that your Basic Total Payments will exceed the limitations of this Section, it will nonetheless make payments to you, at the times stated above, in the maximum amount that it believes may be paid without exceeding such limitations. The balance, if any, will then be paid after the opinions called for above have been received. If the amount paid to you by the Company Corporation is ultimately determined, pursuant to the Determination opinion referred to above or by the Internal Revenue Service, to have exceeded the limitation of this Section, you must repay the excess promptly will be treated as a loan to you by the Corporation and shall be repayable on the 90th day following demand by the Corporation, together with interest at the lowest "applicable federal rate" provided in Section 1274(d) of the CompanyCode. If it is ultimately determined, pursuant to the Determination opinion referred to above or by the Internal Revenue Service, that a greater payment should have been made to you, the Company Corporation shall pay you the amount of the deficiency, together with interest thereon from the date such amount should have been paid to the date of such payment, at the rate set forth above, so that you will have received or be entitled to receive the maximum amount to which you are entitled under this Agreement. As a general rule, the Determination shall be binding on you and the Company. Section 280G and the excise tax rules of Section 4999, however, are complex and uncertain and, as a result, the Internal Revenue Service may disagree with the Consultant’s conclusions. If the Internal Revenue Service determines that the Cap is actually lower than calculated by the Consultant, the Cap will be recalculated by the Consultant. Any payment over that revised Cap will then be repaid by you to the Company. If the Internal Revenue Service determines that the actual Cap exceeds the amount calculated by the Consultant, the Company shall pay you any shortage. The Company has the right to challenge any determinations made by the Internal Revenue Service. If the Company agrees to indemnify you from any taxes, interest and penalties that may be imposed upon you (including any taxes, interest and penalties on the amounts paid pursuant to the Company’s indemnification agreement), you must cooperate fully with the Company in connection with any such challenge. The Company shall bear all costs associated with the challenge of any determination made by the Internal Revenue Service and the Company shall control all such challenges. You must notify the Company in writing of any claim or determination by the Internal Revenue Service that, if upheld, would result in the payment of excise taxes. Such notice shall be given as soon as possible but in no event later than 15 days following your receipt of notice of the Internal Revenue Service’s position.

Calculating the Cap. If the Company believes that these rules will result in a reduction of the payments to which you are entitled under this Agreement, it will so notify you as soon as possible. The Company will then, at its expense, retain a “"Consultant” " (which shall be a law firm, a certified public accounting firm, and/or a firm of recognized executive compensation consultants) to provide a determination an opinion or opinions concerning whether your Basic Payments exceed the limit discussed above (the “Determination”)above. The Company will select the Consultant. At a minimum, the Determination opinions required by this Section must set forth the amount of your Base Period Income, the value of the Basic Payments and the amount and present value of any excess parachute payments. If the Determination states opinions state that there would be an excess parachute payment, your payments under this Agreement will be reduced to the extent necessary to eliminate the excessexcess such that no excise tax will be payable under Section 4999 of the Code in respect of your Basic Payments. You will be allowed to choose the payment that should be reduced or eliminated, but the payment you choose to reduce or eliminate must be a payment determined by such Consultant to be includable in Basic Payments. You will make your decision in writing and deliver it to the Company within 30 days of your receipt of such opinions. If you fail to so notify the Company, it will decide which payments to reduce or eliminate. If the Consultant selected to provide the Determination opinions referred to above so requestsrequests in connection with the opinion required by this Section, a firm of recognized executive compensation consultants selected by the Company (which may, but be is not required to be, the Consultant) shall provide an opinion, upon which such Consultant may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered before or after the Change in Control. If the Company believes that your Basic Payments will exceed the limitations of this Section, it will nonetheless make payments to you, at the times stated above, in the maximum amount that it believes may be paid without exceeding such limitations. The balance, if any, will then be paid after the opinions called for above have been received. If the amount paid to you by the Company is ultimately determined, pursuant to the Determination opinion referred to above or by the Internal Revenue Service, to have exceeded the limitation of this Section, you must repay the excess promptly will be treated as a loan to you by the Company and shall be repayable on the 90th day following demand by the Company, together with interest at the lowest "applicable federal rate" provided in Section 1274(d) of the CompanyCode. If it is ultimately determined, pursuant to the Determination opinion referred to above or by the Internal Revenue Service, that a greater payment should have been made to you, the Company shall pay you the amount of the deficiency, together with interest thereon from the date such amount should have been paid to the date of such payment, at the rate set forth above, so that you will have received or be entitled to receive the maximum amount to which you are entitled under this Agreement. As a general rule, the Determination shall be binding on you and the Company. Section 280G and the excise tax rules of Section 4999, however, are complex and uncertain and, as a result, the Internal Revenue Service may disagree with the Consultant’s conclusions. If the Internal Revenue Service determines that the Cap is actually lower than calculated by the Consultant, the Cap will be recalculated by the Consultant. Any payment over that revised Cap will then be repaid by you to the Company. If the Internal Revenue Service determines that the actual Cap exceeds the amount calculated by the Consultant, the Company shall pay you any shortage. The Company has the right to challenge any determinations made by the Internal Revenue Service. If the Company agrees to indemnify you from any taxes, interest and penalties that may be imposed upon you (including any taxes, interest and penalties on the amounts paid pursuant to the Company’s indemnification agreement), you must cooperate fully with the Company in connection with any such challenge. The Company shall bear all costs associated with the challenge of any determination made by the Internal Revenue Service and the Company shall control all such challenges. You must notify the Company in writing of any claim or determination by the Internal Revenue Service that, if upheld, would result in the payment of excise taxes. Such notice shall be given as soon as possible but in no event later than 15 days following your receipt of notice of the Internal Revenue Service’s position.

Calculating the Cap. If the Company Corporation believes that these rules will result in a reduction of the payments to which you are entitled under this Agreement, it will so notify you as soon as possible. The Company Corporation will then, at its expense, retain a “"Consultant” " (which shall be a law firm, a certified public accounting firm, and/or a firm of nationally recognized as providing executive compensation consultantsconsulting services) to provide a determination an opinion or opinions concerning whether your Basic Total Payments exceed the limit discussed above (the “Determination”)above. The Company Corporation will select the Consultant. At a minimum, the Determination opinions required by this Section must set forth the amount of your Base Period Income, the items included in the calculation of the Total Payments, the present value of the Basic Payments Total Payments, and the amount and present value of any excess parachute payments. If the Determination states opinions state that there would be an excess parachute payment, your payments under this Agreement will be reduced to the extent necessary to eliminate the excess. You will be allowed to choose the payment that should be reduced or eliminated, but the payment you choose to reduce or eliminate must be a payment determined by such Consultant to be includable in Total Payments. You will make your decision in writing and deliver it to the Corporation within 30 days of your receipt of such opinions. If you fail to so notify the Corporation, it will decide which payments to reduce or eliminate. If the Consultant selected to provide the Determination opinions referred to above so requestsrequests in connection with the opinion required by this Section, a firm of recognized executive compensation consultants selected by the Company (which may, but is not required to be, the Consultant) Corporation shall provide an opinion, upon which such Consultant may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered before or after the Change in of Control. If the Company Corporation believes that your Basic Total Payments will exceed the limitations of this Section, it will nonetheless make payments to you, at the times stated above, in the maximum amount that it believes may be paid without exceeding such limitations. The balance, if any, will then be paid after the opinions called for above have been received. If the amount paid to you by the Company Corporation is ultimately determined, pursuant to the Determination opinion referred to above or by the Internal Revenue Service, to have exceeded the limitation of this Section, you must repay the excess promptly will be treated as a loan to you by the Corporation and shall be repayable on the 90th day following demand by the Corporation, together with interest at the lowest "applicable federal rate" provided in Section 1274(d) of the CompanyCode. If it is ultimately determined, pursuant to the Determination opinion referred to above or by the Internal Revenue Service, that a greater payment should have been made to you, the Company Corporation shall pay you the amount of the deficiency, together with interest thereon from the date such amount should have been paid to the date of such payment, at the interest rate set forth above, so that you will have received or be entitled to receive the maximum amount to which you are entitled under this Agreement. As a general rule, the Determination shall be binding on you and the Company. Section 280G and the excise tax rules of Section 4999, however, are complex and uncertain and, as a result, the Internal Revenue Service may disagree with the Consultant’s conclusions. If the Internal Revenue Service determines that the Cap is actually lower than calculated by the Consultant, the Cap will be recalculated by the Consultant. Any payment over that revised Cap will then be repaid by you to the Company. If the Internal Revenue Service determines that the actual Cap exceeds the amount calculated by the Consultant, the Company shall pay you any shortage. The Company has the right to challenge any determinations made by the Internal Revenue Service. If the Company agrees to indemnify you from any taxes, interest and penalties that may be imposed upon you (including any taxes, interest and penalties on the amounts paid pursuant to the Company’s indemnification agreement), you must cooperate fully with the Company in connection with any such challenge. The Company shall bear all costs associated with the challenge of any determination made by the Internal Revenue Service and the Company shall control all such challenges. You must notify the Company in writing of any claim or determination by the Internal Revenue Service that, if upheld, would result in the payment of excise taxes. Such notice shall be given as soon as possible but in no event later than 15 days following your receipt of notice of the Internal Revenue Service’s position.

Calculating the Cap. If the Company Corporation believes that these rules will result in a reduction of the payments to which you are entitled under this Agreement, it will so notify you as soon as possible. The Company Corporation will then, at its expense, retain a “Consultant” (which shall be a law firm, a certified public accounting firm, and/or a firm of nationally recognized as providing executive compensation consultantsconsulting services) to provide a determination an opinion or opinions concerning whether your Basic Total Payments exceed the limit discussed above (the “Determination”)above. The Company Corporation will select the Consultant. At a minimum, the Determination opinions required by this Section must set forth the amount of your Base Period Income, the items included in the calculation of the Total Payments, the present value of the Basic Payments Total Payments, and the amount and present value of any excess parachute payments. If the Determination states opinions state that there would be an excess parachute payment, your payments under this Agreement will be reduced to the extent necessary to eliminate the excess. You will be allowed to choose the payment that should be reduced or eliminated, but the payment you choose to reduce or eliminate must be a payment determined by such Consultant to be includable in Total Payments. You will make your decision in writing and deliver it to the Corporation within 30 days of your receipt of such opinions. If you fail to so notify the Corporation, it will decide which payments to reduce or eliminate. If the Consultant selected to provide the Determination opinions referred to above so requestsrequests in connection with the opinion required by this Section, a firm of recognized executive compensation consultants selected by the Company (which may, but is not required to be, the Consultant) Corporation shall provide an opinion, upon which such Consultant may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered before or after the Change in of Control. If the Company Corporation believes that your Basic Total Payments will exceed the limitations of this Section, it will nonetheless make payments to you, at the times stated above, in the maximum amount that it believes may be paid without exceeding such limitations. The balance, if any, will then be paid after the opinions called for above have been received. If the amount paid to you by the Company Corporation is ultimately determined, pursuant to the Determination opinion referred to above or by the Internal Revenue Service, to have exceeded the limitation of this Section, you must repay the excess promptly will be treated as a loan to you by the Corporation and shall be repayable on the 90th day following demand by the Corporation, together with interest at the lowest “applicable federal rate” provided in Section 1274(d) of the CompanyCode. If it is ultimately determined, pursuant to the Determination opinion referred to above or by the Internal Revenue Service, that a greater payment should have been made to you, the Company Corporation shall pay you the amount of the deficiency, together with interest thereon from the date such amount should have been paid to the date of such payment, at the interest rate set forth above, so that you will have received or be entitled to receive the maximum amount to which you are entitled under this Agreement. As a general rule, the Determination shall be binding on you and the Company. Section 280G and the excise tax rules of Section 4999, however, are complex and uncertain and, as a result, the Internal Revenue Service may disagree with the Consultant’s conclusions. If the Internal Revenue Service determines that the Cap is actually lower than calculated by the Consultant, the Cap will be recalculated by the Consultant. Any payment over that revised Cap will then be repaid by you to the Company. If the Internal Revenue Service determines that the actual Cap exceeds the amount calculated by the Consultant, the Company shall pay you any shortage. The Company has the right to challenge any determinations made by the Internal Revenue Service. If the Company agrees to indemnify you from any taxes, interest and penalties that may be imposed upon you (including any taxes, interest and penalties on the amounts paid pursuant to the Company’s indemnification agreement), you must cooperate fully with the Company in connection with any such challenge. The Company shall bear all costs associated with the challenge of any determination made by the Internal Revenue Service and the Company shall control all such challenges. You must notify the Company in writing of any claim or determination by the Internal Revenue Service that, if upheld, would result in the payment of excise taxes. Such notice shall be given as soon as possible but in no event later than 15 days following your receipt of notice of the Internal Revenue Service’s position.