Common use of Determination by Accountant Clause in Contracts

Determination by Accountant. Except as otherwise provided in Section 11(a), all determinations required to be made under this Section 11, including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by the independent accounting firm retained by the Company on the date of Change in Control (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Employee within 15 business days of the date of termination, if applicable, or such earlier time as is requested by the Company. If the Accounting Firm determines that no Excise Tax is payable by Employee, it shall furnish Employee with an opinion that he or she has substantial authority not to report any Excise Tax on his or her federal income tax return. Any determination by the Accounting Firm shall be binding upon the Company and Employee. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 11(c) and Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Employee.

Determination by Accountant. Except as otherwise provided in Section 11(a), all All determinations required to be made under this Section 11Subsection and Subsection (a) above, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by the independent public accounting firm retained by the Company on immediately prior to the date of Change change in Control control (the “"Accounting Firm”"), which shall provide detailed supporting calculations both to the Company and Executive Employee within 15 business days of the date receipt of termination, if applicable, request from Executive Employee or such earlier time as is requested by the Company. If the Accounting Firm determines that no Excise Tax is payable by Employee, it shall furnish Employee with an opinion that he or she has substantial authority not to report any Excise Tax on his or her federal income tax return. Any determination by All fees and expenses of the Accounting Firm shall be binding upon borne solely by Company. Any Gross-Up Payment, as determined pursuant to this Subsection, shall be paid by Company to Executive Employee within five days of the Company and Employeereceipt of the Accounting Firm's determination. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up payments Payments which will not have been made by the Company should have been made (“"Underpayment”), ") consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 11(c) and Executive Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive Employee."