Common use of Determination by the Executive Clause in Contracts

Determination by the Executive. (1) If at any time within 90 days following determination of the Gross-up Payment by the Accounting Firm, the Executive disputes the amount of the Gross-up Payment, the Executive may accept the amount determined under Section 11(b) without prejudice and may elect to demand payment of the additional amount which the Executive, in accordance with an opinion of counsel to the Executive (“Executive Counsel Opinion”), determines to be the full Gross-up Payment. Any such demand by the Executive shall be made by delivery to the Corporation of a written notice that specifies the Gross-up Payment determined by the Executive and an Executive Counsel Opinion regarding such Gross-up Payment (such written notice and opinion collectively, the “Executive’s Determination”). (2) Within 14 days after delivery of the Executive’s Determination to the Corporation, the Corporation shall either (i) pay the Executive the additional Gross-up Payment set forth in the Executive’s Determination or (ii) deliver to the Executive a certificate specifying the Gross-up Payment determined by the Accounting Firm, together with an opinion of the Corporation’s counsel (“Corporation Counsel Opinion”), and pay the Executive the Gross-up Payment specified in such certificate (less the portion of such amount, if any, previously paid to the Executive by the Corporation). If for any reason the Corporation fails to comply with clause (ii) of the preceding sentence, the Gross-up Payment specified in the Executive’s Determination shall be controlling for all purposes.