Common use of Determination by Executive Clause in Contracts

Determination by Executive. (a) If (i) the Company shall fail to deliver a Company Certificate to Executive within 30 days after its receipt of his written request therefor, or (ii) within 90 days after Executive’s receipt of a Company Certificate, Executive provides notice to Company that Executive disputes either (x) the amount of the Gross-Up Payment set forth therein or (y) the determination set forth therein to the effect that no Gross-Up Payment is due by reason of Section 5.7 or otherwise, and Executive takes further measures within 180 days to enforce the Gross-Up Payment, then Executive may elect to require the Company to pay a Gross-Up Payment in the amount determined by Executive as set forth in an Executive Counsel Opinion (as defined in Section 5.5). Any such demand by Executive shall be made by delivery to the Company of a written notice that specifies the Gross-Up Payment determined by Executive (together with the detailed calculations of the amounts of Potential Parachute Payments, Excise Taxes and Gross-Up Payment and the assumptions relating thereto) and an Executive Counsel Opinion regarding such Gross-Up Payment (such written notice and opinion collectively, the “Executive’s Gross-Up Determination”). Within 30 days after delivery of an Executive’s Gross-Up Determination to the Company, the Company shall either (i) pay Executive the Gross-Up Payment set forth in the Executive’s Gross-Up Determination (less the portion thereof, if any, previously paid to Executive by the Company) or (ii) deliver to Executive a Company Certificate and a Company Counsel Opinion (as defined in Section 5.5), and pay Executive the Gross-Up Payment specified in such Company Certificate. If for any reason the Company fails to comply with the preceding sentence, the Gross-Up Payment specified in the Executive’s Gross-Up Determination shall be controlling for all purposes.

Determination by Executive. (a) If (i) the Company shall fail to deliver a Company Certificate to Executive within 30 days after its receipt of his written request therefor, or (ii) within 90 days at any time after Executive’s receipt of a Company Certificate, Executive provides notice to Company that Executive disputes either (x) the amount of the Gross-Up Payment set forth therein or (y) the determination set forth therein to the effect that no Gross-Up Payment is due (whether by reason of Section 5.7 8.11 or otherwise, and Executive takes further measures within 180 days to enforce the Gross-Up Payment), then Executive may elect to require the Company to pay a Gross-Up Payment in the amount determined by Executive as set forth in an Executive Counsel Opinion (as defined in Section 5.58.9). Any such demand by Executive shall be made by delivery to the Company of a written notice that which specifies the Gross-Up Payment determined by Executive (together with the detailed calculations of the amounts of Potential Parachute Payments, Excise Taxes and Gross-Up Payment and the assumptions relating thereto) and an Executive Counsel Opinion regarding such Gross-Up Payment (such written notice and opinion collectively, the “Executive’s Gross-Up Determination”). Within 30 days after delivery of an Executive’s Gross-Up Determination to the Company, the Company shall either (i) pay Executive the Gross-Up Payment set forth in the Executive’s Gross-Up Determination (less the portion thereof, if any, previously paid to Executive by the Company) or (ii) deliver to Executive a Company Certificate and a Company Counsel Opinion (as defined in Section 5.58.9), and pay Executive the Gross-Up Payment specified in such Company Certificate. If for any reason the Company fails to comply with the preceding sentence, the Gross-Up Payment specified in the Executive’s Gross-Up Determination shall be controlling for all purposes.

Determination by Executive. (a) If (i) the Company shall fail to deliver a Company Certificate to Executive within 30 days after its receipt of his written request therefor, or (ii) within 90 days at any time after Executive’s receipt of a Company Certificate, Executive provides notice to Company that Executive disputes either (x) the amount any portion of the Gross-Up Payment set forth therein or (y) the determination set forth therein to the effect that no Gross-Up Payment is due by reason of Section 5.7 or otherwise, and Executive takes further measures within 180 days to enforce the Gross-Up PaymentCompany Certificate, then Executive may elect to require deliver a determination (“Executive Certificate”) to the Company, setting forth Executive’s determination as to whether Section 5.1(a) applies, and if so, the amount of the Capped Amount. If the Executive Certificate specifies that the Company is required to pay a Gross-Up Payment an amount less than the amount specified in the amount determined by Executive as set Company Certificate, setting forth in an detail how such lesser amount was determined, the Executive Counsel Opinion (as defined in Section 5.5). Any such demand by Executive Certificate shall be made by delivery to controlling for all purposes. If the Executive Certificate specifies that the Company is required to pay an amount greater than the amount specified in the Company Certificate, the Executive Certificate shall specify the full amount of a written notice that specifies the Gross-Up Payment Potential Parachute Payments determined by Executive (together with the detailed calculations of the Capped Amount, amounts of Potential Parachute Payments, Excise Taxes and Gross-Up Payment Taxes and the assumptions relating thereto) and shall be accompanied by an Executive Counsel Opinion (as defined in Section 5.3) regarding such Gross-Up Payment the applicability or inapplicability (as appropriate) of the reduction described in Section 5.1(a) (such written notice and opinion collectively, the “Executive’s Gross-Up Determination”). Within 30 days after delivery of an Executive’s Gross-Up Determination to the Company, the Company shall either (i) pay Executive the Gross-Up Payment set forth full amount specified in the Executive’s Gross-Up Determination (less the portion thereof, if any, previously paid to Executive by the Company) or (ii) deliver to Executive a Company Certificate and a Company Counsel Opinion (as defined in Section 5.55.3), and pay Executive the Gross-Up Payment amount specified in such Company Certificate. If for any reason the Company fails to comply with the preceding sentence, the Gross-Up Payment amounts specified in the Executive’s Gross-Up Determination shall be controlling for all purposes.

Determination by Executive. (a) If (i) the Company shall fail to deliver a Company Certificate to Executive within 30 days after its receipt of his written request therefor, or (ii) within 90 days at any time after Executive’s 's receipt of a Company Certificate, Executive provides notice to Company that Executive disputes either (x) the amount of the Gross-Up Payment set forth therein or (y) the determination set forth therein to the effect that no Gross-Up Payment is due by reason of Section 5.7 or otherwise, and Executive takes further measures within 180 days to enforce the Gross-Up Payment, then Executive may elect to require the Company to pay a Gross-Up Payment in the amount determined by Executive as set forth in an Executive Counsel Opinion (as defined in Section 5.5). Any such demand by Executive shall be made by delivery to the Company of a written notice that specifies the Gross-Up Payment determined by Executive (together with the detailed calculations of the amounts of Potential Parachute Payments, Excise Taxes and Gross-Up Payment and the assumptions relating thereto) and an Executive Counsel Opinion regarding such Gross-Up Payment (such written notice and opinion collectively, the “"Executive’s 's Gross-Up Determination”"); provided, however, that Executive shall not be entitled to present an Executive's Gross-Up Determination during a Post-Merger of Equals Period unless the Company shall have failed to deliver a Company Certificate as required by clause (i) of the first sentence of this Section 5.2. Within 30 days after delivery of an Executive’s 's Gross-Up Determination to the Company, the Company shall either (i) pay Executive the Gross-Up Payment set forth in the Executive’s 's Gross-Up Determination (less the portion thereof, if any, previously paid to Executive by the Company) or (ii) deliver to Executive a Company Certificate and a Company Counsel Opinion (as defined in Section 5.5), and pay Executive the Gross-Up Payment specified in such Company Certificate. If for any reason the Company fails to comply with the preceding sentence, the Gross-Up Payment specified in the Executive’s 's Gross-Up Determination shall be controlling for all purposes.

Determination by Executive. (ai) If (iA) the Company shall fail to deliver a Company Certificate to Executive within 30 days after its receipt from Executive of his a written request thereforfor a Certificate, (B) the Company shall deliver a Certificate to Executive but shall fail to pay to Executive the full amount of the Gross-Up Payment set forth therein, or (iiC) within 90 days after Executive’s at any time following his receipt of a Company Certificate, Executive provides notice to Company that Executive disputes either (x) the amount of the Gross-Up Payment set forth therein or (y) the determination set forth therein to the effect that no Gross-Up Payment is due by reason of Section 5.7 or otherwise, and Executive takes further measures within 180 days to enforce the Gross-Up Payment9(h), then Executive may elect to require the Company to pay a Gross-Up Payment in the amount determined by Executive as set forth Executive, in accordance with an Executive Counsel Opinion (as defined in Section 5.59(f)). Any Executive shall make any such demand by Executive shall be made by delivery to the Company of a written notice that specifies the Gross-Up Payment determined by Executive (together with the detailed calculations of the amounts of Potential Parachute Payments, Excise Taxes and Gross-Up Payment and the assumptions relating thereto) and an Executive Counsel Opinion regarding such Gross-Up Payment (such written notice and opinion collectively, the “Executive’s Gross-Up 's Determination”). Within 30 15 days after delivery of an Executive’s Gross-Up 's Determination to the Company, the Company shall either (i1) pay Executive the Gross-Up Payment set forth in the Executive’s Gross-Up 's Determination (less the portion thereofof such amount, if any, previously paid to Executive by the Company) or (ii2) deliver to Executive a Company Certificate and specifying the Gross-Up Payment determined by the Company's designated tax counsel, together with a Company Counsel Opinion (as defined in Section 5.59(f)), and pay Executive the Gross-Up Payment specified in such Company Certificate. If for any reason the Company fails to comply with the preceding sentence, the Gross-Up Payment specified in the Executive’s Gross-Up 's Determination shall be controlling for all purposes.

Determination by Executive. (a) If (i) the Company shall fail to deliver a Company Certificate to Executive within 30 days after its receipt of his written request therefor, or (ii) within 90 days after Executive’s receipt of a Company Certificate, Executive provides notice to Company that Executive disputes either (x) the amount of the Gross-Up Payment set forth therein or (y) the determination set forth therein to the effect that no Gross-Up Payment is due by reason of Section 5.7 or otherwise, and Executive takes further measures within 180 days to enforce the Gross-Up Payment, then Executive may elect to require the Company to pay a Gross-Up Payment in the amount determined by Executive as set forth in an Executive Counsel Opinion (as defined in Section 5.5). Any such demand by Executive shall be made by delivery to the Company of a written notice that specifies the Gross-Up Payment determined by Executive (together with the detailed calculations of the amounts of Potential Parachute Payments, Excise Taxes and Gross-Up Payment and the assumptions relating thereto) and an Executive Counsel Opinion regarding such Gross-Up Payment (such written notice and opinion collectively, the “Executive’s Gross-Up DeterminationDetermi­na­tion”). Within 30 days after delivery of an Executive’s Gross-Up Determination to the Company, the Company shall either (i) pay Executive the Gross-Up Payment set forth in the Executive’s Gross-Up Determination (less the portion thereof, if any, previously paid to Executive by the Company) or (ii) deliver to Executive a Company Certificate and a Company Counsel Opinion (as defined in Section 5.5), and pay Executive the Gross-Up Payment specified in such Company Certificate. If for any reason the Company fails to comply with the preceding sentence, the Gross-Up Payment specified in the Executive’s Gross-Up Determination shall be controlling for all purposes.