Common use of Excise Tax Determination Clause in Contracts

Excise Tax Determination. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to the Executive and selected by the accounting firm (the “Auditor”) which was, immediately prior to the Change in Control, the Company’s independent auditor, does not constitute a “parachute payment” within the meaning of section 280G(b)(2) of the Code (including by reason of section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to such reasonable compensation, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of this Section 6.2, (1) the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the applicable Total Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence in the calendar year in which the applicable Total Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (2) except to the extent that the Executive otherwise notifies the Company, the Executive shall be deemed to be subject to the loss of itemized deductions and personal exemptions to the maximum extent provided by the Code for each dollar of incremental income.

Excise Tax Determination. For purposes If any benefit, payment or distribution by the Company or an Affiliate to or for the benefit of determining the Executive or his legal representatives and dependents, whether and payable or distributable pursuant to the extent terms of this Agreement or pursuant to which any other plan, agreement, program or arrangement including, but not limited to, the Total Payments will Annual Cash Incentive Plan, Long –Term Performance Plan, Benefit Restoration Plan, or Equity Incentive Plans (collectively “Change in Control Arrangements”) would be subject to the Excise Tax excise tax imposed on the Executive under Code Section 4999 on “excess parachute payments” (all of such benefits, payments or distributions, whether or not subject to the excise tax, in aggregate, the “Change in Control Payment”), the Company shall, within twenty (20) days of the Termination Date, provide the Executive with a written notice and explanation of such determination. The notice shall include (i) a calculation computing the amount of the excise tax to be owed by the Executive upon receipt of the Change in Control Payment, detailing (a) the total amount of cash to be paid and the amount of such Excise Taxcash subject to the excise tax, (ib) no portion the amount of and assumptions used to determine the Total Payments value of all non-cash benefits to be provided and such non-cash benefits subject to the receipt or enjoyment excise tax, (c) the Executive’s base amount of which total taxable compensation used in the Executive shall have waived at such time calculation, and in such manner as not (d) the total amount subject to constitute a “payment” within the meaning of section 280G(b) of the Code shall be taken into accountexcise tax, (ii) no portion a calculation of the Total Payments shall maximum amount of the Change in Control Payment that could be taken into account which, in paid by the opinion of tax counsel (“Tax Counsel”) reasonably acceptable Company to the Executive without the imposition of the excise tax (the “Capped Amount”), and selected (iii) calculations showing whether the Executive would receive a larger amount, on an after-tax basis (assuming, for United States taxpayers, payment by the Executive of the Code Section 4999 excise tax and on the portion in excess of the Capped Amount payment of taxes based on the following: (A) the highest marginal federal personal income tax rate, (B) the highest marginal state and local income tax rates for the state in which the Executive is domiciled, and (C) the hospital insurance tax rate under Code Section 311 (b)), if the Company were to pay the Executive (a) the Capped Amount or (b) the Change in Control Payment. The Company shall pay to the Executive on the Payment Date the Capped Amount or the Change in Control Payment, whichever is determined to result in the larger amount as calculated pursuant to clause (iii) of the preceding sentence. The computations and explanation required under this subsection will be made by the accounting firm which was serving as the Company’s independent auditor as of the Termination Date, or if that firm is not available to perform the computation, the computation shall be performed by a tax counsel or nationally recognized accounting firm selected by mutual consent of the Company and the Executive (the “Auditor”) which was, immediately prior to ). The fees and expenses of the Change in Control, Auditor will be paid solely by the Company’s independent auditor, does not constitute . The computations and valuations required under this section will be performed in a “parachute payment” within the meaning of section 280G(b)(2) of the Code (including by reason of section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to such reasonable compensation, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Auditor in accordance manner consistent with the principles requirements of sections 280G(d)(3) Code Sections 280G and (4) of the Code. For purposes of this Section 6.24999, (1) the Executive shall be deemed to pay federal income tax as in effect at the highest marginal rate of federal income taxation in time the calendar year in which the applicable Total Payment is to be made computations and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence in the calendar year in which the applicable Total Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (2) except to the extent that the Executive otherwise notifies the Company, the Executive shall be deemed to be subject to the loss of itemized deductions and personal exemptions to the maximum extent provided by the Code for each dollar of incremental incomevaluations are performed.