REQUIREMENTS OF
THIS SECTION 4.5.
IN THE EVENT THAT THE ACCOUNTING/CONSULTING FIRM, BASED UPON
THE ASSERTION OF A DEFICIENCY BY THE INTERNAL REVENUE SERVICE AGAINST EITHER AN
EMPLOYER OR THE PARTICIPANT WHICH THE ACCOUNTING/CONSULTING FIRM BELIEVES HAS A
HIGH PROBABILITY OF SUCCESS DETERMINES THAT AN OVERPAYMENT HAS BEEN MADE, ANY
SUCH OVERPAYMENT PAID OR DISTRIBUTED TO OR FOR THE BENEFIT OF A PARTICIPANT
SHALL BE TREATED FOR ALL PURPOSES AS A LOAN TO THE PARTICIPANT WHICH THE
PARTICIPANT SHALL REPAY TO THE EMPLOYER TOGETHER WITH INTEREST AT THE APPLICABLE
FEDERAL RATE PROVIDED FOR IN SECTION 7872(F)(2) OF THE CODE; PROVIDED, HOWEVER,
THAT NO SUCH LOAN SHALL BE DEEMED TO HAVE BEEN MADE AND NO AMOUNT SHALL BE
PAYABLE BY A PARTICIPANT IF AND TO THE EXTENT SUCH DEEMED LOAN AND PAYMENT WOULD
NOT EITHER REDUCE THE AMOUNT ON WHICH THE PARTICIPANT IS SUBJECT TO TAX UNDER
SECTION 1 AND SECTION 4999 OF THE CODE OR GENERATE A REFUND OF SUCH TAXES OR
WOULD BE A PROHIBITED LOAN UNDER SECTION 402 OF THE SARBANES-OXLEY ACT OF 2002,
AS AMENDED.
IN THE EVENT THAT THE ACCOUNTING/CONSULTING FIRM, BASED UPON
CONTROLLING PRECEDENT OR SUBSTANTIAL AUTHORITY, DETERMINES THAT AN UNDERPAYMENT
HAS OCCURRED, ANY SUCH UNDERPAYMENT SHALL BE PROMPTLY PAID OR CAUSED TO BE PAID
BY THE CORPORATION TO OR FOR THE BENEFIT OF THE PARTICIPANT TOGETHER WITH
INTEREST AT THE APPLICABLE FEDERAL RATE PROVIDED FOR IN SECTION 7872(F)(2) OF
THE CODE, BUT IN NO EVENT SHALL THE UNDERPAYMENT BE PAID NO LATER THAN THE END
OF THE FIRST CALENDAR YEAR IN WHICH THE CALCULATION OF THE UNDERPAYMENT IS
ADMINISTRATIVELY PRACTICABLE..
12
(III)
THE PARTICIPANT SHALL NOTIFY THE CORPORATION IN WRITING OF ANY
CLAIM BY THE INTERNAL REVENUE SERVICE THAT, IF SUCCESSFUL, COULD REQUIRE THE
PAYMENT OF THE GROSS-UP PAYMENT.
SUCH NOTIFICATION SHALL BE GIVEN AS SOON AS
PRACTICABLE BUT NO LATER THAN TEN BUSINESS DAYS AFTER THE PARTICIPANT IS
INFORMED IN WRITING OF SUCH CLAIM AND SHALL APPRISE THE CORPORATION OF THE
NATURE OF SUCH CLAIM AND THE DATE ON WHICH SUCH CLAIM IS REQUESTED TO BE PAID.
THE PARTICIPANT 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 CORPORATION (OR
SUCH SHORTER PERIOD ENDING ON THE DATE THAT ANY PAYMENT OF TAXES WITH RESPECT TO
SUCH CLAIM IS DUE).
IF THE CORPORATION NOTIFIES THE PARTICIPANT IN WRITING
PRIOR TO THE EXPIRATION OF SUCH PERIOD THAT IT DESIRES TO CONTEST SUCH CLAIM,
THE PARTICIPANT SHALL:
(A)
GIVE THE CORPORATION ANY INFORMATION REASONABLY REQUESTED BY THE
CORPORATION RELATING TO SUCH CLAIM,
(B)
TAKE SUCH ACTION IN CONNECTION WITH CONTESTING SUCH CLAIM AS THE
CORPORATION 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 CORPORATION,
(C)
COOPERATE WITH THE CORPORATION IN GOOD FAITH IN ORDER TO CONTEST
SUCH CLAIM EFFECTIVELY, AND
(D)
PERMIT THE CORPORATION TO PARTICIPATE IN ANY PROCEEDINGS RELATING
TO