Common use of Determination by Accounting Firm Clause in Contracts

Determination by Accounting Firm. All determinations required to be made under Section 2.7, Section 2.8 and Section 2.9, including whether and when a Gross-Up Payment Amount is required, the amount of the Gross-Up Payment Amount and the assumptions to be used to arrive at the determination (collectively, the “Determination”), shall be made by the Accounting Firm, which shall provide detailed supporting calculations both to the Bank and the Executive within 15 business days after receipt of notice from the Bank or the Executive that there has been a Gross-Up Payment Amount, or such earlier time as is requested by the Bank. All fees and expenses of the Accounting Firm shall be borne solely by the Bank. The Bank shall enter into any reasonable agreement requested by the Accounting Firm in connection with the performance of its services hereunder. If the Accounting Firm determines that no Excise Tax is payable by the Executive, the Accounting Firm shall furnish the Executive with a written opinion to that effect, and to the effect that failure to report an Excise Tax, if any, on the Executive’s applicable federal income tax return will not result in the imposition of a negligence or similar penalty. The Determination by the Accounting Firm shall be binding on the Bank and the Executive. If, after a Determination by the Accounting Firm, the Executive is required to make a payment of additional Excise Tax (“Underpayment”), the Accounting Firm shall determine the amount of the Underpayment that has occurred. The Underpayment (together with interest at the rate provided in section 1274(d)(2)(B) of the Code) shall be paid promptly by the Bank to or for the benefit of the Executive. If the Gross-Up Payment Amount exceeds the amount necessary to reimburse the Executive for his Excise Tax (“Overpayment”), the Accounting Firm shall determine the amount of the Overpayment that has been made. The Overpayment (together with interest at the rate provided in section 1274(d)(2)(B) of the Code) shall be paid promptly by the Executive to or for the benefit of the Bank. Provided that his expenses are reimbursed by the Bank, the Executive shall cooperate with any reasonable requests by the Bank in any contests or disputes with the Internal Revenue Service relating to the Excise Tax. If the Accounting Firm is serving as accountant or auditor for the individual, entity, or group effecting the Change in Control, the Executive, in his sole discretion, may appoint another nationally recognized public accounting firm to make the Determinations required hereunder (in which case the term “Accounting Firm” as used in this Agreement shall be deemed to refer to the accounting firm appointed by the Executive under this Section).

Determination by Accounting Firm. All determinations required to be made under Section 2.7, Section 2.8 and Section 2.9, including whether and when a Gross-Up Payment Amount is required, the amount of the Gross-Up Payment Amount and the assumptions to be used to arrive at the determination (collectively, the “Determination”), this Article 5 shall be made by the public accounting firm that is retained by the Company as of the date immediately prior to the Change in Control (the “Accounting Firm, ”) which shall provide detailed supporting calculations both to the Bank Company and the Executive within 15 fifteen (15) business days after of the receipt of notice from the Bank Company or the Executive that there has been a Gross-Up Payment AmountPayment, or such earlier time as is requested by the BankCompany. Notwithstanding the foregoing, in the event (i) the Board shall determine prior to the Change in Control that the Accounting Firm is precluded from performing such services under applicable auditor independence rules or (ii) the Audit Committee of the Board determines that it does not want the Accounting Firm to perform such services because of auditor independence concerns or (iii) the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Board shall appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). If payments are reduced to the Safe Harbor Cap, the Accounting Firm shall provide a reasonable opinion to Executive that he or she is not required to report any Excise Tax on his or her federal income tax return. All fees fees, costs and expenses (including, but not limited to, the costs of retaining experts) of the Accounting Firm shall be borne solely by the Bank. The Bank shall enter into any reasonable agreement requested by the Accounting Firm in connection with the performance of its services hereunderCompany. If the Accounting Firm determines that no Excise Tax is payable by the Executive, the Accounting Firm it shall furnish the Executive with a written opinion to that such effect, and to the effect that failure to report an the Excise Tax, if any, on the Executive’s applicable federal income tax return will not result in the imposition of a negligence or similar penalty. In the event the Accounting Firm determines that the Payments shall be reduced to the Safe Harbor Cap, it shall furnish Executive with a written opinion to such effect. The Determination determination by the Accounting Firm shall be binding on upon the Bank Company and the Executive. If, after a Determination by the Accounting Firm, the Executive is required to make a payment of additional Excise Tax (“Underpayment”), the Accounting Firm shall determine the amount of the Underpayment that has occurred. The Underpayment (together with interest at the rate except as provided in section 1274(d)(2)(B) of the Code) shall be paid promptly by the Bank to or for the benefit of the Executive. If the Gross-Up Payment Amount exceeds the amount necessary to reimburse the Executive for his Excise Tax (“Overpayment”), the Accounting Firm shall determine the amount of the Overpayment that has been made. The Overpayment (together with interest at the rate provided in section 1274(d)(2)(B) of the Code) shall be paid promptly by the Executive to or for the benefit of the Bank. Provided that his expenses are reimbursed by the Bank, the Executive shall cooperate with any reasonable requests by the Bank in any contests or disputes with the Internal Revenue Service relating to the Excise Tax. If the Accounting Firm is serving as accountant or auditor for the individual, entity, or group effecting the Change in Control, the Executive, in his sole discretion, may appoint another nationally recognized public accounting firm to make the Determinations required hereunder (in which case the term “Accounting Firm” as used in this Agreement shall be deemed to refer to the accounting firm appointed by the Executive under this SectionSection 5.3 below).

Determination by Accounting Firm. All Subject to the provisions of subsection (d) below, all determinations required to be made under Section 2.7, Section 2.8 and Section 2.9this Section, including whether and when a Gross-Up Payment Amount is required, required and the amount of the such Gross-Up Payment Amount and the assumptions to be used to arrive utilized in arriving at the determination (collectively, the “Determination”)such determination, shall be made by the Accounting FirmCompany's independent auditors or, at the Executive's option, any other nationally or regionally recognized firm of independent accountants selected by the Executive and approved by the Company, which approval shall not be unreasonably withheld, (the "ACCOUNTING FIRM") which shall provide detailed supporting calculations both to the Bank Company and the Executive within 15 business days after receipt of notice from the Bank or the Executive that there has been a Gross-Up Payment Amount, or such earlier time as is requested by the BankExecutive. All fees and expenses of the Accounting Firm shall be borne paid solely by the BankCompany. The Bank Any Gross-Up Payment, as determined pursuant to this Section, shall enter into any reasonable agreement requested be paid by the Accounting Firm in connection with Company to Executive not later than the performance due date for the payment of its services hereunder. If the Accounting Firm determines that no Excise Tax is payable by the Executive, the Accounting Firm shall furnish the Executive with a written opinion to that effect, and to the effect that failure to report an any Excise Tax, if any, on the Executive’s applicable federal income tax return will not result in the imposition of a negligence or similar penalty. The Determination Any determination by the Accounting Firm shall be binding on upon the Bank Company and the Executive. If, after As a Determination result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting FirmFirm 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 subsection (d) and Executive thereafter is required to make a payment of additional any Excise Tax (“Underpayment”)Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred. The occurred and any such Underpayment (together with interest at the rate provided in section 1274(d)(2)(B) of the Code) shall be he promptly paid promptly by the Bank Company to or for the benefit of the Executive. If the Gross-Up Payment Amount exceeds the amount necessary to reimburse the Executive for his Excise Tax (“Overpayment”), the Accounting Firm shall determine the amount of the Overpayment that has been made. The Overpayment (together with interest at the rate provided in section 1274(d)(2)(B) of the Code) shall be paid promptly by the Executive to or for the benefit of the Bank. Provided that his expenses are reimbursed by the Bank, the Executive shall cooperate with any reasonable requests by the Bank in any contests or disputes with the Internal Revenue Service relating to the Excise Tax. If the Accounting Firm is serving as accountant or auditor for the individual, entity, or group effecting the Change in Control, the Executive, in his sole discretion, may appoint another nationally recognized public accounting firm to make the Determinations required hereunder (in which case the term “Accounting Firm” as used in this Agreement shall be deemed to refer to the accounting firm appointed by the Executive under this Section)'s benefit.