Common use of Certain Exclusions Clause in Contracts

Certain Exclusions. For purposes of determining whether and the extent to which the Total Payments will be subject to the 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 written opinion of an independent, nationally recognized accounting or consulting firm (the “Independent Advisors”) selected by the Company, 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 the Independent Advisors, 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” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit (including the value of any non-competition provision that may apply to Executive) included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. The Company shall bear all costs the Independent Advisors may reasonably incur in connection with any calculations contemplated by this provision. In the event that the Independent Advisors determine in good faith that any amounts paid by the Company to the Executive pursuant to this Section 6 should not have been paid, such amount shall be promptly repaid by the Executive to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code. In the event that the Independent Advisors determine in good faith that the Executive is entitled to additional payments under this Agreement after applying the reduction set forth in Section 6(a), any such additional amounts shall be promptly paid by the Company to the Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Certain Exclusions. For purposes of determining whether and the extent to which the Total Payments will be subject to the 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 written opinion of an independenta qualified accounting firm or other advisor appointed or engaged by the Company with Executive’s prior written consent prior to any change in ownership or control (within the meaning of Treasury Regulations Section 1.280G-1, nationally recognized accounting or consulting firm Q&As 27 - 29) (the “Independent Advisors”) selected by the Company), 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 written opinion of the Independent Advisors, 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” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit (including the value of any non-competition provision that may apply to Executive) included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. The Company shall bear all costs the Independent Advisors may reasonably incur in connection with any calculations contemplated by this provision. In the event that the Independent Advisors determine in good faith that any amounts paid by the Company to the Executive pursuant to this Section 6 should not have been paid, such amount shall be promptly repaid by the Executive to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) 280G of the Code. In the event that the Independent Advisors determine are serving as accountants, auditors or counsel for the individual, entity or group effecting the change in good faith that ownership or control (within the Executive is entitled to additional payments under this Agreement after applying the reduction set forth in meaning of Treasury Regulations Section 6(a1.280G-1, Q&As 27 - 29), any such additional amounts the Company shall appoint another qualified accounting firm or other advisor to make the determinations hereunder (which firms shall then be referred to as the “Independent Advisors” hereunder). All determinations hereunder shall be promptly paid made by the Independent Advisors, who shall provide detailed supporting calculations both to the Company and Executive at such time as it is requested by the Company to the Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) or Executive. The determination of the CodeIndependent Advisors shall be final and binding upon the Company and Executive. The Company shall be responsible for all charges for the Independent Advisors. The Company and Executive shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered by this Section 6.

Certain Exclusions. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive Employee 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 written opinion of an independent, nationally recognized accounting firm and/or tax counsel appointed or consulting firm engaged by the Company with the Employee’s prior written consent prior to any change in ownership or control (within the meaning of Treasury Regulations Section 1.280G-1, Q&As 27 - 29) (the “Independent Advisors”) selected by the Company), 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 written opinion of the Independent Advisors, 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” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit (including the value of any non-competition provision that may apply to Executive) included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. The Company shall bear all costs the Independent Advisors may reasonably incur in connection with any calculations contemplated by this provision. In the event that the Independent Advisors determine in good faith that any amounts paid by the Company to the Executive pursuant to this Section 6 should not have been paid, such amount shall be promptly repaid by the Executive to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) 280G of the Code. In the event that the Independent Advisors determine are serving as accountants, auditors or counsel for the individual, entity or group effecting the change in good faith that ownership or control (within the Executive is entitled to additional payments under this Agreement after applying the reduction set forth in meaning of Treasury Regulations Section 6(a1.280G-1, Q&As 27 - 29), any such additional amounts the Company shall appoint another nationally recognized accounting firm and/or tax counsel to make the determinations hereunder (which firms shall then be referred to as the “Independent Advisors” hereunder). All determinations hereunder shall be promptly paid made by the Independent Advisors, who shall provide detailed supporting calculations both to the Company and the Employee at such time as it is requested by the Company to or the Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) Employee. The determination of the CodeIndependent Advisors shall be final and binding upon the Company and the Employee. The Company shall be responsible for all charges for the Independent Advisors. The Company and the Employee shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered by this Section 6(F).

Certain Exclusions. For purposes of determining whether and the extent to which the Total Payments will be subject to the 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 written opinion of an independent, nationally recognized accounting or consulting firm (the “Independent Advisors”) selected by the Company, 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 the Independent Advisors, 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” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit (including the value of any non-competition provision that may apply to Executive) included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. The Company shall bear all costs the Independent Advisors may reasonably incur in connection with any calculations contemplated by this provision. In the event that the Independent Advisors determine in good faith that any amounts paid by the Company to the Executive pursuant to this Section 6 should not have been paid, such amount shall be promptly repaid by the Executive to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code. In the event that the Independent Advisors determine in good faith that the Executive is entitled to additional payments under this Agreement after applying the reduction set forth in Section 6(a(a), any such additional amounts shall be promptly paid by the Company to the Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.

Certain Exclusions. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive Employee 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 written opinion of an independent, nationally recognized accounting firm and/or tax counsel appointed or consulting firm engaged by the Company with the Employee’s prior written consent prior to any change in ownership or control (within the meaning of Treasury Regulations Section 1.280G-1, Q&As 27 – 29) (the “Independent Advisors”) selected by the Company), 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 written opinion of the Independent Advisors, 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” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit (including the value of any non-competition provision that may apply to Executive) included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. The Company shall bear all costs the Independent Advisors may reasonably incur in connection with any calculations contemplated by this provision. In the event that the Independent Advisors determine in good faith that any amounts paid by the Company to the Executive pursuant to this Section 6 should not have been paid, such amount shall be promptly repaid by the Executive to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) 280G of the Code. In the event that the Independent Advisors determine are serving as accountants, auditors or counsel for the individual, entity or group effecting the change in good faith that ownership or control (within the Executive is entitled to additional payments under this Agreement after applying the reduction set forth in meaning of Treasury Regulations Section 6(a1.280G-1, Q&As 27 – 29), any such additional amounts the Company shall appoint another nationally recognized accounting firm and/or tax counsel to make the determinations hereunder (which firms shall then be referred to as the “Independent Advisors” hereunder). All determinations hereunder shall be promptly paid made by the Independent Advisors, who shall provide detailed supporting calculations both to the Company and the Employee at such time as it is requested by the Company to or the Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) Employee. The determination of the CodeIndependent Advisors shall be final and binding upon the Company and the Employee. The Company shall be responsible for all charges for the Independent Advisors. The Company and the Employee shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered by this Section 6(G).

Certain Exclusions. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive Employee 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 written opinion of an independent, nationally recognized accounting firm and/or tax counsel appointed or consulting firm engaged by the Company with the Employee’s prior written consent prior to any change in ownership or control (within the meaning of Treasury Regulations Section 1.280G-1, Q&As 27 - 29) (the “Independent Advisors”) selected by the Company), 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 written opinion of the Independent Advisors, 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” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit (including the value of any non-competition provision that may apply to Executive) included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. The Company shall bear all costs the Independent Advisors may reasonably incur in connection with any calculations contemplated by this provision. In the event that the Independent Advisors determine in good faith that any amounts paid by the Company to the Executive pursuant to this Section 6 should not have been paid, such amount shall be promptly repaid by the Executive to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) 280G of the Code. In the event that the Independent Advisors determine are serving as accountants, auditors or counsel for the individual, entity or group effecting the change in good faith that ownership or control (within the Executive is entitled to additional payments under this Agreement after applying the reduction set forth in meaning of Treasury Regulations Section 6(a1.280G-1, Q&As 27 - 29), any such additional amounts the Company shall appoint another nationally recognized accounting firm and/or tax counsel to make the determinations hereunder (which firms shall then be referred to as the “Independent Advisors” hereunder). All determinations hereunder shall be promptly paid made by the Independent Advisors, who shall provide detailed supporting calculations both to the Company and the Employee at such time as it is requested by the Company to or the Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2)(A) Employee. The determination of the CodeIndependent Advisors shall be final and binding upon the Company and the Employee. The Company shall be responsible for all charges for the Independent Advisors. The Company and the Employee shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered by this Section 6(G).