Common use of Subsequent Recalculation Clause in Contracts

Subsequent Recalculation. In the event that a Gross-Up Payment is payable and the Internal Revenue Service proposes to increase the amount of Excise Tax payable by the Executive in excess of the computation of the Company under Section 5.2 herein so that the Executive did not receive the greatest net benefit, the Company shall reimburse the Executive within 30 days of the date of the recalculation for the full amount necessary to make the Executive whole, plus interest as described in Section 4.4; provided, however, that the Executive follows the procedures set forth in this Section 5.3. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the later of either: (i) the date the Executive has actual knowledge of such claim, or (ii) the date Internal Revenue Service issues to the Executive either a written report proposing imposition of the Excise Tax or a statutory notice of deficiency with respect thereto, and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30 day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (a) Give the Company any information reasonably requested by the Company relating to such claim; (b) Take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (c) Cooperate with the Company in good faith in order effectively to contest such claim; and (d) Permit the Company to participate in any proceedings relating to such claims. The Company shall directly bear and pay all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income or payroll tax, including interest and penalties with respect thereto, imposed and payment of costs and expenses. Without limitation of the foregoing provisions of this Section 5.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with the taxing authority in respect of such claim. If the Company does not notify the Executive in writing prior to the expiration of such 30 day period that it desires to contest such claim, the Company shall reimburse the Executive for the full amount necessary to make the Executive whole in accordance with the limitations set forth in Article 4, plus a market rate of interest, as determined by the Committee, all as contemplated by this Section 5.3. If, after the receipt by the Executive of an amount advanced by the Company pursuant to this Article 5.3, the Executive receives a refund with respect to such claim due to an overpayment of Excise Tax, including interest and penalties with respect thereto, the Executive shall (subject to the Company’s complying with the requirements of this Section 5.3) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto).

Subsequent Recalculation. In the event that a Gross-Up Payment is payable and the Internal Revenue Service proposes to increase the amount of Excise Tax payable by the Executive in excess of adjusts the computation of the Company under Section 5.2 7.2 herein so that the Executive did not receive the greatest net benefit, the Company shall reimburse the Executive within 30 days of the date of the recalculation for the full amount necessary to make the Executive whole, plus interest a market rate of interest, as described in Section 4.4determined by the Committee; provided, however, that the Executive follows follow the procedures set forth in this Section 5.37.3. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the later of either: (i) the date the Executive has actual knowledge of such claim, or (ii) ten (10) days after the date Internal Revenue Service issues to the Executive either a written report proposing imposition of the Excise Tax or a statutory notice of deficiency with respect thereto, and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30 thirty (30) day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (a) Give the Company any information reasonably requested by the Company relating to such claim; (b) Take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (c) Cooperate with the Company in good faith in order effectively to contest such claim; and (d) Permit the Company to participate in any proceedings relating to such claims. The Provided, however, that the Company shall directly bear and pay all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income or payroll tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation of the foregoing provisions of this Section 5.37.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with the taxing authority in respect of such claim. If the Company does not notify the Executive in writing prior to the expiration of such 30 day period that it desires to contest such claim, the Company shall reimburse the Executive for the full amount necessary to make the Executive whole in accordance with the limitations set forth in Article 4, plus a market rate of interest, as determined by the Committee, all as contemplated by this Section 5.3. If, after the receipt by the Executive of an amount advanced by the Company pursuant to this Article 5.37, the Executive receives a becomes entitled to receive any refund with respect to such claim due to an overpayment of any Excise TaxTax or income tax, including interest and penalties with respect thereto, the Executive shall (subject to the Company’s complying with the requirements of this Section 5.37.3) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to this Article 7, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Subsequent Recalculation. In the event that a Gross-Up Payment is payable and the Internal Revenue Service proposes to increase the amount of Excise Tax payable by the Executive in excess of the computation of the Company under Section 5.2 8.3 herein so that the Executive did not receive the greatest net benefit, the Company shall reimburse the Executive within 30 days of the date of the recalculation for the full amount necessary to make the Executive whole, plus interest a market rate of interest, as described in Section 4.4determined by the Committee; provided, however, that the Executive follows the procedures set forth in this Section 5.38.3. All reimbursements shall be made on or before the date on which the taxes are remitted by the Company to the taxing authorities and in accordance with Section 409A of the Code. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the later of either: (i) the date the Executive has actual knowledge of such claim, or (ii) ten (10) days after the date Internal Revenue Service issues to the Executive either a written report proposing imposition of the Excise Tax or a statutory notice of deficiency with respect thereto, and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30 thirty (30) day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (ai) Give give the Company any information reasonably requested by the Company relating to such claim; (bii) Take take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (ciii) Cooperate cooperate with the Company in good faith in order effectively to contest such claim; and (div) Permit permit the Company to participate in any proceedings relating to such claims. The Provided, however, that the Company shall directly bear and pay all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income or payroll taxtax (including FICA), including interest and penalties with respect thereto, imposed and payment of costs and expenses. Without limitation of the foregoing provisions of this Section 5.38.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with the taxing authority in respect of such claim. If the Company does not notify the Executive in writing prior to the expiration of such 30 thirty (30) day period that it desires to contest such claim, the Company shall reimburse the Executive for the full amount necessary to make the Executive whole in accordance with the limitations set forth in Article 4whole, plus a market rate of interest, as determined by the Committee, all as contemplated by this Section 5.38.3. If, after the receipt by the Executive of an amount advanced by the Company pursuant to this Article 5.3Section 8.3, the Executive receives a refund with respect to such claim due to an overpayment of Excise Tax, including interest and penalties with respect thereto, the Executive shall (subject to the Company’s complying with the requirements of this Section 5.38.3) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto).

Subsequent Recalculation. In the event that a Gross-Up Payment is payable and the Internal Revenue Service proposes to increase the amount of Excise Tax payable by the Executive in excess of adjusts the computation of the Company under Section 5.2 7.2 herein so that the Executive did not receive the greatest net benefit, the Company shall reimburse the Executive within 30 days of the date of the recalculation for the full amount necessary to make the Executive whole, plus interest a market rate of interest, as described in Section 4.4determined by the Committee; provided, however, that the Executive follows follow the procedures set forth in this Section 5.37.3. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the later of either: (i) the date the Executive has actual knowledge of such claim, or (ii) ten (10) days after the date Internal Revenue Service issues to the Executive either a written report proposing imposition of the Excise Tax or a statutory notice of deficiency with respect thereto, and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30 thirty (30) day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (a) Give the Company any information reasonably requested by the Company relating to such claim; (b) Take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (c) Cooperate with the Company in good faith in order effectively to contest such claim; and (d) Permit the Company to participate in any proceedings relating to such claims. The Provided, however, that the Company shall directly bear and pay all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income or payroll tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation of the foregoing provisions of this Section 5.37.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with the taxing authority in respect of such claim. If the Company does not notify the Executive in writing prior to the expiration of such 30 day period that it desires to contest such claim, the Company shall reimburse the Executive for the full amount necessary to make the Executive whole in accordance with the limitations set forth in Article 4, plus a market rate of interest, as determined by the Committee, all as contemplated by this Section 5.3. If, after the receipt by the Executive of an amount advanced by the Company pursuant to this Article 5.37, the Executive receives a becomes entitled to receive any refund with respect to such claim due to an overpayment of any Excise TaxTax or income tax, including interest and penalties with respect thereto, the Executive shall (subject to the Company’s 's complying with the requirements of this Section 5.37.3) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to this Article 7, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. Article 8. The Company's Payment Obligation 8.1

Subsequent Recalculation. In the event that a Gross-Up Payment is payable and the Internal Revenue Service proposes to increase the amount of Excise Tax payable by the Executive in excess of the computation of the Company under Section 5.2 8.4 herein so that the Executive did not receive the greatest net benefit, the Company shall reimburse the Executive within 30 days of the date of the recalculation for the full amount necessary to make the Executive whole, plus interest a market rate of interest, as described in Section 4.4determined by the Committee; provided, however, that the Executive follows follow the procedures set forth in this Section 5.38.4. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the later of either: (i) the date the Executive has actual knowledge of such claim, or (ii) ten (10) days after the date Internal Revenue Service issues to the Executive either a written report proposing imposition of the Excise Tax or a statutory notice of deficiency with respect thereto, and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30 thirty (30) day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (ai) Give the Company any information reasonably requested by the Company relating to such claim; (bii) Take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (ciii) Cooperate with the Company in good faith in order effectively to contest such claim; and (div) Permit the Company to participate in any proceedings relating to such claims. The Company shall directly bear and pay all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income or payroll tax, including interest and penalties with respect thereto, imposed and payment of costs and expenses. Without limitation of the foregoing provisions of this Section 5.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with the taxing authority in respect of such claim. If the Company does not notify the Executive in writing prior to the expiration of such 30 day period that it desires to contest such claim, the Company shall reimburse the Executive for the full amount necessary to make the Executive whole in accordance with the limitations set forth in Article 4, plus a market rate of interest, as determined by the Committee, all as contemplated by this Section 5.3. If, after the receipt by the Executive of an amount advanced by the Company pursuant to this Article 5.3, the Executive receives a refund with respect to such claim due to an overpayment of Excise Tax, including interest and penalties with respect thereto, the Executive shall (subject to the Company’s complying with the requirements of this Section 5.3) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto).

Subsequent Recalculation. In the event that a Gross-Up Payment is payable and the Internal Revenue Service proposes to increase the amount of Excise Tax payable by the Executive in excess of the computation of the Company under Section 5.2 8.3 herein so that the Executive did not receive the greatest net benefit, the Company shall reimburse the Executive within 30 days of the date of the recalculation for the full amount necessary to make the Executive whole, plus interest a market rate of interest, as described in Section 4.4determined by the Committee; provided, however, that the Executive follows the procedures set forth in this Section 5.38.3. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the later of either: (i) the date the Executive has actual knowledge of such claim, or (ii) ten (10) days after the date Internal Revenue Service issues to the Executive either a written report proposing imposition of the Excise Tax or a statutory notice of deficiency with respect thereto, and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30 thirty (30) day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (ai) Give give the Company any information reasonably requested by the Company relating to such claim; (bii) Take take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (ciii) Cooperate cooperate with the Company in good faith in order effectively to contest such claim; and (div) Permit permit the Company to participate in any proceedings relating to such claims. The Provided, however, that the Company shall directly bear and pay all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income or payroll taxtax (including FICA), including interest and penalties with respect thereto, imposed and payment of costs and expenses. Without limitation of the foregoing provisions of this Section 5.38.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with the taxing authority in respect of such claim. If the Company does not notify the Executive in writing prior to the expiration of such 30 thirty (30) day period that it desires to contest such claim, the Company shall reimburse the Executive for the full amount necessary to make the Executive whole in accordance with the limitations set forth in Article 4whole, plus a market rate of interest, as determined by the Committee, all as contemplated by this Section 5.38.3. If, after the receipt by the Executive of an amount advanced by the Company pursuant to this Article 5.3Section 8.3, the Executive receives a refund with respect to such claim due to an overpayment of Excise Tax, including interest and penalties with respect thereto, the Executive shall (subject to the Company’s complying with the requirements of this Section 5.38.3) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto).

Subsequent Recalculation. In the event that a Gross-Up Payment is payable and the Internal Revenue Service proposes to increase the amount of Excise Tax payable by the Executive in excess of the computation of the Company under Section 5.2 herein so that the Executive did not receive the greatest net benefit, the Company shall reimburse the Executive within 30 days of the date of the recalculation for the full amount necessary to make the Executive whole, plus interest a market rate of interest, as described in Section 4.4determined by the Committee; provided, however, that the Executive follows follow the procedures set forth in this Section 5.3. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the later of either: (i) the date the Executive has actual knowledge of such claim, or (ii) ten (10) days after the date Internal Revenue Service issues to the Executive either a written report proposing imposition of the Excise Tax or a statutory notice of deficiency with respect thereto, and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30 thirty (30) day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (a) Give the Company any information reasonably requested by the Company relating to such claim; (b) Take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (c) Cooperate with the Company in good faith in order effectively to contest such claim; and (d) Permit the Company to participate in any proceedings relating to such claims. The Provided, however, that the Company shall directly bear and pay all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income or payroll tax, including interest and penalties with respect thereto, imposed and payment of costs and expenses. Without limitation of the foregoing provisions of this Section 5.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with the taxing authority in respect of such claim. If the Company does not notify the Executive in writing prior to the expiration of such 30 thirty (30) day period that it desires to contest such claim, the Company shall reimburse the Executive for the full amount necessary to make the Executive whole in accordance with the limitations set forth in Article 4whole, plus a market rate of interest, as determined by the Committee, all as contemplated by this Section 5.3. If, after the receipt by the Executive of an amount advanced by the Company pursuant to this Article 5.3, the Executive receives a refund with respect to such claim due to an overpayment of Excise Tax, including interest and penalties with respect thereto, the Executive shall (subject to the Company’s 's complying with the requirements of this Section 5.3) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto)."

Subsequent Recalculation. In the event that a Gross-Up Payment is payable and the Internal Revenue Service proposes to increase the amount of Excise Tax payable by the Executive in excess of adjusts the computation of the Company under Section 5.2 herein 6.2 hereof so that the Executive did not receive the greatest net benefit, the Company shall reimburse the Executive within 30 days of the date of the recalculation for the full amount necessary to make the Executive whole, plus interest a market rate of interest, as described in Section 4.4determined by the Committee; provided, however, that the Executive follows the procedures set forth in this Section 5.36.3. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the later of either: (i) the date the Executive has actual knowledge of such claim, or (ii) ten (10) days after the date Internal Revenue Service issues to the Executive either a written report proposing imposition of the Excise Tax or a statutory notice of deficiency with respect thereto, and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30 thirty (30) day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (a) Give the Company any information reasonably requested by the Company relating to such claim; (b) Take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (c) Cooperate with the Company in good faith in order effectively to contest such claim; and (d) Permit the Company to participate in any proceedings relating to such claims. The Provided, however, that the Company shall directly bear and pay all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income or payroll tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation of the foregoing provisions of this Section 5.37.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with the taxing authority in respect of such claim. If the Company does not notify the Executive in writing prior to the expiration of such 30 day period that it desires to contest such claim, the Company shall reimburse the Executive for the full amount necessary to make the Executive whole in accordance with the limitations set forth in Article 4, plus a market rate of interest, as determined by the Committee, all as contemplated by this Section 5.3. If, after the receipt by the Executive of an amount advanced by the Company pursuant to this Article 5.36, the Executive receives a becomes entitled to receive any refund with respect to such claim due to an overpayment of any Excise TaxTax or income tax, including interest and penalties with respect thereto, the Executive shall (subject to the Company’s 's complying with the requirements of this Section 5.36.3) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to this Article 6, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Subsequent Recalculation. In the event that a Gross-Up Payment is payable and the Internal Revenue Service proposes to increase the amount of Excise Tax payable by the Executive in excess of the computation of the Company under Section 5.2 herein so that the Executive did not receive the greatest net benefit, the Company shall reimburse the Executive within 30 days of the date of the recalculation for the full amount necessary to make the Executive whole, plus interest a market rate of interest, as described in Section 4.4determined by the Committee; provided, however, that the Executive follows follow the procedures set forth in this Section 5.3. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the later of either: (i) the date the Executive has actual knowledge of such claim, or (ii) ten (10) days after the date Internal Revenue Service issues to the Executive either a written report proposing imposition of the Excise Tax or a statutory notice of deficiency with respect thereto, and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30 thirty (30) day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (a) Give the Company any information reasonably requested by the Company relating to such claim; (b) Take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (c) Cooperate with the Company in good faith in order effectively to contest such claim; and (d) Permit the Company to participate in any proceedings relating to such claims. The Provided, however, that the Company shall directly bear and pay all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income or payroll tax, including interest and penalties with respect thereto, imposed and payment of costs and expenses. Without limitation of the foregoing provisions of this Section 5.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with the taxing authority in respect of such claim. If the Company does not notify the Executive in writing prior to the expiration of such 30 thirty (30) day period that it desires to contest such claim, the Company shall reimburse the Executive for the full amount necessary to make the Executive whole in accordance with the limitations set forth in Article 4whole, plus a market rate of interest, as determined by the Committee, all as contemplated by this Section 5.3. If, after the receipt by the Executive of an amount advanced by the Company pursuant to this Article 5.3, the Executive receives a refund with respect to such claim due to an overpayment of Excise Tax, including interest and penalties with respect thereto, the Executive shall (subject to the Company’s 's complying with the requirements of this Section 5.3) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto).

Subsequent Recalculation. If it is established pursuant to a final determination of a court or an Internal Revenue Service (the “IRS”) proceeding which has been finally and conclusively resolved, that Total Payments have been made to, or provided for the benefit of, Executive by the Company, which are in excess of the limitations provided in this Section 3 (referred to hereinafter as an “Excess Payment”), Executive shall repay the Excess Payment to the Company on demand, together with interest on the Excess Payment at the applicable federal rate (as defined in Section 1274(d) of the Code) from the date of Executive’s receipt of such Excess Payment until the date of such repayment. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the determination, it is possible that Payments which will not have been made by the Company should have been made (an “Underpayment”), consistent with the calculations required to be made under this Section. In the event that a Gross-Up Payment it is payable and the Internal Revenue Service proposes to increase the amount of Excise Tax payable determined (i) by the Executive in excess of the computation of Accounting Firm, the Company under Section 5.2 herein so (which shall include the position taken by the Company, or together with its consolidated group, on its federal income tax return) or the IRS or (ii) pursuant to a determination by a court, that the Executive did not receive the greatest net benefitan Underpayment has occurred, the Company shall reimburse the pay an amount equal to such Underpayment to Executive within 30 ten (10) days of such determination together with interest on such amount at the applicable federal rate from the date such amount would have been paid to Executive until the date of the recalculation for the full amount necessary to make the Executive whole, plus interest as described in Section 4.4; provided, however, that the Executive follows the procedures set forth in this Section 5.3payment. The Executive shall notify cooperate, to the extent the Executive’s expenses are reimbursed by the Company, with any reasonable requests by the Company in writing of connection with any claim by contests or disputes with the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the later of either: (i) the date the Executive has actual knowledge of such claim, or (ii) the date Internal Revenue Service issues to the Executive either a written report proposing imposition of the Excise Tax or a statutory notice of deficiency with respect thereto, and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30 day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (a) Give the Company any information reasonably requested by the Company relating to such claim; (b) Take such action IRS in connection with contesting such claim as the Company shall reasonably request excise tax or the determination of the Excess Payment. Notwithstanding the foregoing, in writing from time the event that the Total Payments were reduced pursuant to time, including, without limitation, accepting legal representation with respect Paragraph 3.1 hereof and the value of stock options is subsequently re-determined by the Accounting Firm within the context of Treasury Regulation §1.280G-1 Q/A 33 that reduces the value of the Payments attributable to such claim by an attorney reasonably selected by the Company; (c) Cooperate with the Company in good faith in order effectively to contest such claim; and (d) Permit the Company to participate in any proceedings relating to such claims. The Company shall directly bear and pay all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income or payroll tax, including interest and penalties with respect thereto, imposed and payment of costs and expenses. Without limitation of the foregoing provisions of this Section 5.3options, the Company shall control all proceedings taken in connection with such contest andpromptly pay to Executive any amounts payable under this Agreement that were not previously paid solely as a result of Paragraph 3.1 hereof, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with the taxing authority in respect of such claim. If the Company does not notify the Executive in writing prior to the expiration of such 30 day period that it desires to contest such claim, the Company shall reimburse the Executive for the full amount necessary to make the Executive whole in accordance with the limitations set forth in Article 4, plus a market rate of interest, as determined by the Committee, all as contemplated by this Section 5.3. If, after the receipt by the Executive of an amount advanced by the Company pursuant to this Article 5.3, the Executive receives a refund with respect to such claim due to an overpayment of Excise Tax, including interest and penalties with respect thereto, the Executive shall (subject to the Company’s complying with the requirements of this Section 5.3) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto)Safe Harbor Cap.