Common use of Overpayments; Underpayments Clause in Contracts

Overpayments; Underpayments. As a result of the uncertainty in the application of Section 4999 of the Code, at the time of the initial determination by the Tax Counsel hereunder it is possible that Gross-Up Payments not made by the Company should have been made ("underpayments"), or that Gross-Up Payments will have been made by the Company which should not have been made ("overpayments"). In either such event, the Tax Counsel shall determine the amount of the underpayment or overpayment that has occurred. In the case of an underpayment, the amount of such underpayment shall be promptly paid by the Company to or for the benefit of the Executive. In the case of an overpayment, the Executive shall, at the direction and expense of the Company, take such steps as are reasonably necessary (including the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, the Company, and otherwise reasonably cooperate with the Company to correct such overpayment; provided, however, that (i) the Executive shall not in any event be obligated to return to the Company an amount greater than the net after-tax portion of the overpayment that he has retained or has recovered as a refund from the applicable taxing authorities and (ii) this provision shall be interpreted in a manner consistent with the intent of this Section VII, which is to make the Executive whole, on an after-tax basis, from the application of the Excise Tax, it being understood that the correction of an overpayment may result in the Executive repaying to the Company an amount which is less than the overpayment.