Common use of Excise Tax Determination Clause in Contracts

Excise Tax Determination. If any benefit, payment or distribution by the Company or an Affiliate to or for the benefit of the Executive or his legal representatives and dependents, whether payable or distributable pursuant to the terms of this Agreement or pursuant to any other plan, agreement, program or arrangement (including, but not limited to, the Company’s 2005 Stock Incentive Plan and Annual Management Incentive Plan) would be subject to the excise tax imposed under Code Section 4999 on “excess parachute payments” (a “Change in Control Payment”), the Company will compute the maximum amount that could be paid without the imposition of the excise tax imposed by Code Section 4999 (the “Capped Amount”). The computation 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”). The fees and expenses of the Auditor will be paid solely by the Company. The computations and valuations required under this section will be performed in a manner consistent with the requirements of Code Sections 280G and 4999, as in effect at the time the computations and valuations are performed.