such claim and the date on which such claim is required to be paid. The Executive agrees to
not pay such claim before the expiration of thirty (30) days following the date on which the
Executive give such notice to
the Company (or such shorter period ending on the date that any
payment of taxes with respect to such is due). If
the Company notifies the Executive in writing
before the expiration of such 30-day period that it desires to contest such claim, the Executive
must (1) give
the Company any information reasonably requested by
the Company relating to such
claim, and (2) take such action in connection with contesting such claim as
the Company reasonably
requests in writing from time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney selected by
the Company; provided,
however, that
the Company will directly pay all costs and expenses (including additional interest
and penalties) incurred in connection with such contest and will indemnify and hold the Executive
harmless, on an after-tax basis, for any tax, including interest and penalties, imposed as a result
of such representation and payment of costs and expenses.
The Company will control all proceedings
in connection with such contest and may, at its sole option, either direct the Executive to pay the
tax claimed and sue for a refund or to contest the claim in any permissible manner, and the
Executive agrees to prosecute such contest to a determination before any appropriate administrative
tribunal or court, as
the Company may determine; provided, that if
the Company directs the
Executive to pay such claim and sue for a refund,
the Company will advance to the Executive the
amount of such payment, on an interest-free basis, and will indemnify and hold the Executive
harmless, on an after-tax basis, from any tax, including interest or penalties, imposed with
respect to such advance.
The Company’s control of the contest will be limited to issues with
respect to which a Gross-Up Payment would be payable hereunder, and the Executive will be entitled
to settle or contest any other issue.
(iv)
Refund of Excise Tax. If, after the Executive receives an advance by
the Company
pursuant to paragraph (iii) hereof, the Executive becomes entitled to receive a refund claimed
pursuant to such paragraph (iii), the Executive will (subject to
the Company’s complying with the
requirements of such paragraph (iii)) promptly pay to
the Company the amount of such refund
(together with any interest thereon, after taxes applicable thereto). If, after the Executive
receives an amount advanced by
the Company pursuant to paragraph (iii) hereof, a determination is
made that the Executive will not be entitled to any refund claimed pursuant to such paragraph
(iii), and
the Company does not notify the Executive in writing of its intent to contest such
denial or refund before the expiration of thirty (30) days after such determination, the Executive
will not be required to repay such advance, and the amount of such advance shall offset, to the
extent thereof, the amount of the required Gross-Up Payment.
18.
Notices. Any notice required or permitted to be given under this Agreement shall be
sufficient if in writing and if sent by registered or certified mail, return receipt requested to
his residence in the case of the Executive, or to its principal office in the case of
the Company,
or to such other addresses as they may respectively designate in writing.
19. Entire Agreement; Waiver. This Agreement contains the entire understanding of the
parties with respect to the employment relationship between Company and the Executive, and
supercedes any prior agreements relating to such relationship, including any Change of Control
Agreement, and may not be changed orally but only by an agreement in writing, signed by the party
against whom enforcement of any waiver, change, modification or discharge is sought.