BE
DELIVERED TO EXECUTIVE AS SOON AS REASONABLY POSSIBLE AFTER SUCH REQUEST.
5.2
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.
(B)
IF EXECUTIVE DOES NOT REQUEST A COMPANY CERTIFICATE, AND THE
COMPANY DOES NOT DELIVER A COMPANY CERTIFICATE TO EXECUTIVE, THEN (I) THE
COMPANY SHALL, FOR PURPOSES OF SECTION 5.7, BE DEEMED TO HAVE DETERMINED THAT NO
GROSS-UP PAYMENT IS DUE AND (II) EXECUTIVE SHALL NOT PAY ANY EXCISE TAXES IN
RESPECT OF POTENTIAL PARACHUTE PAYMENTS EXCEPT IN ACCORDANCE WITH SECTIONS
5.6(A) OR (D).
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5.3
ADDITIONAL GROSS-UP AMOUNTS.
IF FOR ANY REASON (WHETHER
PURSUANT TO SUBSEQUENTLY ENACTED PROVISIONS OF THE CODE OTHER THAN SECTION 409A
OF THE CODE, FINAL REGULATIONS OR PUBLISHED RULINGS OF THE IRS, A FINAL JUDGMENT
OF A COURT OF COMPETENT JURISDICTION, A DETERMINATION OF THE COMPANY'S
INDEPENDENT AUDITORS SET FORTH IN A COMPANY CERTIFICATE OR, SUBJECT TO THE LAST
TWO SENTENCES OF SECTION 5.2(A), AN EXECUTIVE'S GROSS-UP DETERMINATION) IT IS
LATER DETERMINED THAT THE AMOUNT OF EXCISE TAXES PAYABLE BY EXECUTIVE IS GREATER
THAN THE AMOUNT DETERMINED BY THE COMPANY OR EXECUTIVE PURSUANT TO SECTION 5.1
OR 5.2, AS APPLICABLE, THEN THE COMPANY SHALL, SUBJECT TO SECTIONS 5.6 AND 5.7,
PAY EXECUTIVE WITHIN 30 DAYS AFTER THE DETERMINATION AN AMOUNT (WHICH SHALL ALSO
BE DEEMED A GROSS-UP PAYMENT)