Common use of Code Section 4999 Clause in Contracts

Code Section 4999. 5.1 In the event it shall be determined that as a result, directly or indirectly, of any payment or distribution by the Company to or for the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), Employee would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee shall be entitled to have the Payment either (A) paid or delivered in full, or (B) capped at the amount that is $1 less than three times Employee’s “base amount,” whichever of the foregoing results in the receipt by Employee of the greatest benefit on an after-tax basis (taking into account applicable taxes, including federal, state and local income taxes and the Excise Tax). Any reduction of the Payment required by this subsection shall be carried out by applying the following principles, in order: (1) the payment or benefit with the higher ratio of the parachute payment value to present economic value (determined using reasonable actuarial assumptions) shall be reduced or eliminated before a payment or benefit with a lower ratio; (2) the payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; and (3) cash payments shall be reduced prior to non-cash benefits; provided that if the foregoing order of reduction or elimination would violate Code Section 409A, then the reduction shall be made pro rata among the payments or benefits included in the Payment (on the basis of the relative present value of the parachute payments). 5.2 All determinations required to be made under this Section 5 shall be made by the Company’s Independent Public Accounting Firm (the “Accounting Firm”) which shall provide detailed supporting calculations and documentation both to the Company and Employee within fifteen (15) business days of receipt of notice from Employee that there has been a Payment or such earlier time as is requested by the Company. The Company and Employee shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably request in order to make the determinations required under this Section 5. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, or the Accounting Firm declines such representation, Employee shall appoint a certified public accountant at another nationally recognized accounting firm (or, if none is available a lawyer with a nationally recognized law firm or a compensation consultant with a nationally recognized actuarial and benefits consulting firm) with expertise in the area of executive compensation tax law to make the determinations required hereunder (such accountant, lawyer, or consultant, as applicable, shall then be referred to as the Accounting Firm hereunder), provided such accounting firm is acceptable to the Company (the Company’s acceptance not to be unreasonably withheld). All fees and expenses of the Accounting Firm shall be borne solely by the Company. If the Accounting Firm determines that no Excise Tax is payable by Employee, it shall furnish Employee with a written opinion that failure to report the Excise Tax on the Employee’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and Employee absent manifest error.

Code Section 4999. 5.1 (a) In the event it shall be determined that as a result, directly or indirectly, of any payment or distribution by the Company to or for the benefit of Employeethe Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), Employee the Executive would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Employee the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee the Executive shall be entitled to have the Payment either (A) paid or delivered in full, or (B) capped at the amount that is $1 less than three two times Employeethe Executive’s “base amount,” whichever of the foregoing results in the receipt by Employee the Executive of the greatest benefit on an after-tax basis (taking into account applicable taxes, including federal, state and local income taxes and the Excise Tax). Any reduction of the Payment required by this subsection shall be carried out by applying the following principles, in order: : (1) the payment or or Exhibit 10.1 benefit with the higher ratio of the parachute payment value to present economic value (determined using reasonable actuarial assumptions) shall be reduced or eliminated before a payment or benefit with a lower ratio; (2) the payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; and (3) cash payments shall be reduced prior to non-cash benefits; provided that if the foregoing order of reduction or elimination would violate Code Section 409A, then the reduction shall be made pro rata among the payments or benefits included in the Payment (on the basis of the relative present value of the parachute payments). 5.2 (b) All determinations required to be made under this Section 5 5, shall be made by the Company’s Independent Public Accounting Firm (the “Accounting Firm”) which shall provide detailed supporting calculations and documentation both to the Company and Employee the Executive within fifteen (15) 15 business days of receipt of notice from Employee the Executive that there has been a Payment or such earlier time as is requested by the Company. The Company and Employee shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably request in order to make the determinations required under this Section 5. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, or the Accounting Firm declines such representation, Employee Executive shall appoint a certified public accountant at another nationally recognized accounting firm (or, if none is available a lawyer with a nationally recognized law firm or a compensation consultant with a nationally recognized actuarial and benefits consulting firm) with expertise in the area of executive compensation tax law to make the determinations required hereunder (such accountant, lawyer, or consultant, as applicable, which accounting firm shall then be referred to as the Accounting Firm hereunder), provided such accounting firm is acceptable to the Company (the Company’s acceptance not to be unreasonably withheld). All fees and expenses of the Accounting Firm shall be borne solely by the Company. If the Accounting Firm determines that no Excise Tax is payable by Employeethe Executive, it shall furnish Employee the Executive with a written opinion that failure to report the Excise Tax on the EmployeeExecutive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and Employee absent manifest errorthe Executive.

Code Section 4999. 5.1 In the event If it shall be is determined that as a result, directly or indirectly, of any payment or distribution the Employee is entitled to payments and/or benefits provided by the Company to or for the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement with the Company or any affiliate (a “PaymentPayments”), Employee ) that would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “280G Excise Tax”), then Employee the Company shall cause to be entitled determined, before any portion of the Payments are paid to have the Payment either (A) paid or delivered in fullEmployee, or (B) capped at which of the amount that is $1 less than three times following two alternative forms of payment would maximize the Employee’s “base amount,” whichever of the foregoing results in the receipt by Employee of the greatest benefit on an after-tax basis proceeds: (taking into account applicable taxes, including federal, state and local income taxes and a) payment in full of the entire amount of the Payments; or (b) payment of only a part of the Payments (reduced to the minimum extent necessary) so that the Employee receives the largest payment possible without the imposition of the 280G Excise TaxTax (“Reduced Payments”). Any reduction of the Payment required by this subsection shall be carried out by applying the following principlesIf it is determined that Reduced Payments will maximize Employee’s after-tax benefit, in order: then (1) cash compensation subject to the payment or benefit with the higher ratio of the parachute payment value to present economic value (determined using reasonable actuarial assumptionssix-month delay rule in Code Section 409A(a)(2)(B)(i) shall be reduced or eliminated before a payment or benefit with a lower ratio; first, payments in respect of whole value equity grants (2) the payment or benefit commencing with the later possible payment date last equity grant to vest) shall be reduced or eliminated before a payment or benefit second, payments in respect of stock options and stock appreciation rights (commencing with an earlier payment date; the last equity grant to vest) shall be reduced third, and lastly, cash payments that are not subject to the six month delay rule in Code Section 409A(a)(2)(B)(i) shall be reduced, (3) the Payments shall be paid only to the extent permitted under the Reduced Payments alternative and (3) cash the Employee shall have no rights to any additional payments shall be reduced prior to non-cash benefits; provided that if and/or benefits constituting the foregoing order Payments. To the extent not negating this paragraph under Code Section 280G and not in violation of reduction or elimination would violate Code Section 409A, then the reduction Employee may direct an alternative order of reduction. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section shall be made pro rata among the payments or benefits included in the Payment (on the basis of the relative present value of the parachute payments). 5.2 All determinations required writing by independent public accountants agreed to be made under this Section 5 shall be made by the Company’s Independent Public Accounting Firm Company and the Employee (the “Accounting FirmAccountants”) which ), whose determination shall provide detailed supporting calculations be conclusive and documentation both to binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section, the Accountants may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and Employee within fifteen (15) business days of receipt of notice from Employee that there has been a Payment or such earlier time as is requested by the Company4999. The Company and the Employee shall furnish to the Accounting Firm Accountants such information and documents as the Accounting Firm Accountants may reasonably request in order to make the determinations required under this Section 5determinations. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, or the Accounting Firm declines such representation, Employee The Company shall appoint a certified public accountant at another nationally recognized accounting firm (or, if none is available a lawyer with a nationally recognized law firm or a compensation consultant with a nationally recognized actuarial and benefits consulting firm) with expertise in the area of executive compensation tax law to make the determinations required hereunder (such accountant, lawyer, or consultant, as applicable, shall then be referred to as the Accounting Firm hereunder), provided such accounting firm is acceptable to the Company (the Company’s acceptance not to be unreasonably withheld). All bear all fees and expenses of the Accounting Firm shall be borne solely Accountants may reasonably charge in connection with the services contemplated by the Company. If the Accounting Firm determines that no Excise Tax is payable by Employee, it shall furnish Employee with a written opinion that failure to report the Excise Tax on the Employee’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and Employee absent manifest errorthis Section.

Code Section 4999. 5.1 (a) In the event it shall be determined that as a result, directly or indirectly, of any payment or distribution by the Company to or for the benefit of Employeethe Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), Employee the Executive would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Employee the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee the Executive shall be entitled to have the Payment either (A) paid or delivered in full, or (B) capped at the amount that is $1 less than three two times Employeethe Executive’s “base amount,” whichever of the foregoing results in the receipt by Employee the Executive of the greatest benefit on an after-tax basis (taking into account applicable taxes, including federal, state and local income taxes and the Excise Tax). Any reduction of the Payment required by this subsection shall be carried out by applying the following principles, in order: : (1) the payment or benefit with the higher ratio of the parachute payment value to present economic value (determined using reasonable actuarial assumptions) shall be reduced or eliminated before a payment or benefit with a lower ratio; (2) the payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; and (3) cash payments shall be reduced prior to non-cash benefits; provided that if the foregoing order of reduction or elimination would violate Code Section 409A, then the reduction shall be made pro rata among the payments or benefits included in the Payment (on the basis of the relative present value of the parachute payments). 5.2 (b) All determinations required to be made under this Section 5 5, shall be made by the Company’s Independent Public Accounting Firm (the “Accounting Firm”) which shall provide detailed supporting calculations and documentation both to the Company and Employee the Executive within fifteen (15) 15 business days of receipt of notice from Employee the Executive that there has been a Payment or such earlier time as is requested by the Company. The Company and Employee shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably request in order to make the determinations required under this Section 5. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, or the Accounting Firm declines such representation, Employee Executive shall appoint a certified public accountant at another nationally recognized accounting firm (or, if none is available a lawyer with a nationally recognized law firm or a compensation consultant with a nationally recognized actuarial and benefits consulting firm) with expertise in the area of executive compensation tax law to make the determinations required hereunder (such accountant, lawyer, or consultant, as applicable, which accounting firm shall then be referred to as the Accounting Firm hereunder), provided such accounting firm is acceptable to the Company (the Company’s acceptance not to be unreasonably withheld). All fees and expenses of the Accounting Firm shall be borne solely by the Company. If the Accounting Firm determines that no Excise Tax is payable by Employeethe Executive, it shall furnish Employee the Executive with a written opinion that failure to report the Excise Tax on the EmployeeExecutive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and Employee absent manifest errorthe Executive.

Code Section 4999. 5.1 In (a) Notwithstanding any other provision of this Agreement, in the event it shall be determined that as a result, directly or indirectly, of any payment or distribution by the Company or its affiliates to or for the benefit of Employee, the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “"Payment”), Employee ") would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Employee the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then Employee the Executive shall be entitled to have elect to reduce the Payment either (A) paid or delivered in full, or (B) capped at the by an amount that is $1 less than three times Employee’s “base amount,” whichever of the foregoing results in the receipt by Employee of the greatest benefit on an after-tax basis (taking into account applicable taxes, including federal, state and local income taxes and would reduce or eliminate the Excise Tax). Any reduction The Executive shall, in his sole discretion, determine the amount of such reduced Payment and the Payment required that is to be reduced; provided, however, that no Payment may reduced in any manner that would result in a violation of Section 409A. Any such election and determinations of reduced Payments by this subsection the Executive shall be carried out irrevocable and shall be communicated in writing to the Company no later than thirty (30) days after the Accounting Firm notifies the Executive that an Excise Tax will be due and payable upon a Payment absent an election by applying the following principles, in order:Executive. (1b) the payment or benefit with the higher ratio of the parachute payment value to present economic value (determined using reasonable actuarial assumptions) shall be reduced or eliminated before a payment or benefit with a lower ratio; (2) the payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; and (3) cash payments shall be reduced prior to non-cash benefits; provided that if the foregoing order of reduction or elimination would violate Code Section 409A, then the reduction shall be made pro rata among the payments or benefits included in the Payment (on the basis of the relative present value of the parachute payments). 5.2 All determinations required to be made under this Section 5 9, including whether and when an Excise Tax would otherwise be imposed upon a Payment and the assumptions to be utilized in arriving at such determination, shall be made by PricewaterhouseCoopers LLP or such other certified public accounting firm as may be designated by the Company’s Independent Public Accounting Firm Executive (the “"Accounting Firm”) "), which shall provide detailed supporting calculations and documentation both to the Company and Employee the Executive within fifteen thirty (1530) business days of receipt the Executive’s date of notice Separation from Employee that there has been a Payment or such earlier time as is requested by Service (within the Company. The Company and Employee shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably request in order to make the determinations required under this meaning of Section 5409A). In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or the Accounting Firm declines such representation, Employee Executive shall appoint a certified public accountant at another nationally recognized accounting firm (or, if none is available a lawyer with a nationally recognized law firm or a compensation consultant with a nationally recognized actuarial and benefits consulting firm) with expertise in the area of executive compensation tax law to make the determinations required hereunder (such accountant, lawyer, or consultant, as applicable, which accounting firm shall then be referred to as the Accounting Firm hereunder), provided such accounting firm is acceptable to the Company (the Company’s acceptance not to be unreasonably withheld). All fees and expenses of the Accounting Firm shall be borne solely by the Company. If the Accounting Firm determines that . (c) In no Excise Tax is payable by Employee, it shall furnish Employee with a written opinion that failure to report the Excise Tax on the Employee’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon event will the Company and Employee absent manifest erroror any of its affiliates provide any additional payments to the Executive to compensate the Executive for the payment of any Excise Tax.

Code Section 4999. 5.1 (a) In the event it shall be determined that as a result, directly or indirectly, of any payment or distribution by the Company to or for the benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), the Employee would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Employee shall be entitled to have the Payment either (A) paid or delivered in full, or (B) capped at the amount that is $1 less than three times the Employee’s “base amount,” whichever of the foregoing results in the receipt by the Employee of the greatest benefit on an after-tax basis (taking into account applicable taxes, including federal, state and local income taxes and the Excise Tax). Any reduction of the Payment required by this subsection shall be carried out by applying the following principles, in order: (1) the payment or benefit with the higher ratio of the parachute payment value to present economic value (determined using reasonable actuarial assumptions) shall be reduced or eliminated before a payment or benefit with a lower ratio; (2) the payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; and (3) cash payments shall be reduced prior to non-cash benefits; provided that if the foregoing order of reduction or elimination would violate Code Section 409A, then the reduction shall be made pro rata among the payments or benefits included in the Payment (on the basis of the relative present value of the parachute payments). 5.2 (b) All determinations required to be made under this Section 5 5, shall be made by the Company’s Independent Public Accounting Firm (the “Accounting Firm”) which shall provide detailed supporting calculations and documentation both to the Company and the Employee within fifteen (15) 15 business days of receipt of notice from the Employee that there has been a Payment or such earlier time as is requested by the Company. The Company and Employee shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably request in order to make the determinations required under this Section 5. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or the Accounting Firm declines such representation, Employee shall appoint a certified public accountant at another nationally recognized accounting firm (or, if none is available a lawyer with a nationally recognized law firm or a compensation consultant with a nationally recognized actuarial and benefits consulting firm) with expertise in the area of executive compensation tax law to make the determinations required hereunder (such accountant, lawyer, or consultant, as applicable, which accounting firm shall then be referred to as the Accounting Firm hereunder), provided such accounting firm is acceptable to the Company (the Company’s acceptance not to be unreasonably withheld). All fees and expenses of the Accounting Firm shall be borne solely by the Company. If the Accounting Firm determines that no Excise Tax is payable by the Employee, it shall furnish the Employee with a written opinion that failure to report the Excise Tax on the Employee’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and Employee absent manifest errorthe Employee.

Code Section 4999. 5.1 (a) In the event it shall be determined that as a result, directly or indirectly, of any payment or distribution by the Company to or for the benefit of Employeethe Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), Employee the Executive would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Employee the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee the Executive shall be entitled to have the Payment either (A) paid or delivered in full, or (B) capped at the amount that is $1 less than three two times Employeethe Executive’s “base amount,” whichever of the foregoing results in the receipt by Employee the Executive of the greatest benefit on an after-tax basis (taking into account applicable taxes, including federal, state and local income taxes and the Excise Tax). Any reduction of the Payment required by this subsection shall be carried out by applying the following principles, in order:the (1) the payment or benefit with the higher ratio of the parachute payment value to present economic value (determined using reasonable actuarial assumptions) shall be reduced or eliminated before a payment or benefit with a lower ratio; (2) the payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; and (3) cash payments shall be reduced prior to non-cash benefits; provided that if the foregoing order of reduction or elimination would violate Code Section 409A, then the reduction shall be made pro rata among the payments or benefits included in the Payment (on the basis of the relative present value of the parachute payments). 5.2 (b) All determinations required to be made under this Section 5 5, shall be made by the Company’s Independent Public Accounting Firm (the “Accounting Firm”) which shall provide detailed supporting calculations and documentation both to the Company and Employee the Executive within fifteen (15) 15 business days of receipt of notice from Employee the Executive that there has been a Payment or such earlier time as is requested by the Company. The Company and Employee shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably request in order to make the determinations required under this Section 5. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, or the Accounting Firm declines such representation, Employee Executive shall appoint a certified public accountant at another nationally recognized accounting firm (or, if none is available a lawyer with a nationally recognized law firm or a compensation consultant with a nationally recognized actuarial and benefits consulting firm) with expertise in the area of executive compensation tax law to make the determinations required hereunder (such accountant, lawyer, or consultant, as applicable, which accounting firm shall then be referred to as the Accounting Firm hereunder), provided such accounting firm is acceptable to the Company (the Company’s acceptance not to be unreasonably withheld). All fees and expenses of the Accounting Firm shall be borne solely by the Company. If the Accounting Firm determines that no Excise Tax is payable by Employeethe Executive, it shall furnish Employee the Executive with a written opinion that failure to report the Excise Tax on the EmployeeExecutive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and Employee absent manifest errorthe Executive.

Code Section 4999. 5.1 (a) In the event it shall be determined that as a result, directly or indirectly, of any payment or distribution by the Company to or for the benefit of Employeethe Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), Employee the Executive would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Employee the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee the Executive shall be entitled to have the Payment either (A) paid or delivered in full, or (B) capped at the amount that is $1 less than three times Employeethe Executive’s “base amount,” whichever of the foregoing results in the receipt by Employee the Executive of the greatest benefit on an after-tax basis (taking into account applicable taxes, including federal, state and local income taxes and the Excise Tax). Any reduction of the Payment required by this subsection shall be carried out by applying the following principles, in order: (1) the payment or benefit with the higher ratio of the parachute payment value to present economic value (determined using reasonable actuarial assumptions) shall be reduced or eliminated before a payment or benefit with a lower ratio; (2) the payment or benefit with the later possible payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; and (3) cash payments shall be reduced prior to non-cash benefits; provided that if the foregoing order of reduction or elimination would violate Code Section 409A, then the reduction shall be made pro rata among the payments or benefits included in the Payment (on the basis of the relative present value of the parachute payments). 5.2 (b) All determinations required to be made under this Section 5 5, shall be made by the Company’s Independent Public Accounting Firm (the “Accounting Firm”) which shall provide detailed supporting calculations and documentation both to the Company and Employee the Executive within fifteen (15) 15 business days of receipt of notice from Employee the Executive that there has been a Payment or such earlier time as is requested by the Company. The Company and Employee shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably request in order to make the determinations required under this Section 5. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, or the Accounting Firm declines such representation, Employee Executive shall appoint a certified public accountant at another nationally recognized accounting firm (or, if none is available a lawyer with a nationally recognized law firm or a compensation consultant with a nationally recognized actuarial and benefits consulting firm) with expertise in the area of executive compensation tax law to make the determinations required hereunder (such accountant, lawyer, or consultant, as applicable, which accounting firm shall then be referred to as the Accounting Firm hereunder), provided such accounting firm is acceptable to the Company (the Company’s acceptance not to be unreasonably withheld). All fees and expenses of the Accounting Firm shall be borne solely by the Company. If the Accounting Firm determines that no Excise Tax is payable by Employeethe Executive, it shall furnish Employee the Executive with a written opinion that failure to report the Excise Tax on the EmployeeExecutive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and Employee absent manifest errorthe Executive.