Common use of Determination Process Clause in Contracts

Determination Process. The determination of whether it is necessary to decrease a payment or benefit to be paid under this agreement must be made in good faith by a nationally recognized accounting firm (the “Accounting Firm”) selected by the Company. This determination will be conclusive and binding upon you and the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity, or group effecting the transaction giving rise to the characterization of any payments as “parachute payments,” we shall appoint another nationally recognized accounting firm to make the determination required under this agreement (in which case, that accounting firm will be referred to as the “Accounting Firm” under this agreement). We shall bear all fees of the Accounting Firm. If a reduction is necessary, the Company shall first reduce the Retention Bonus to the fullest extent necessary, and second reduce any other payment or benefit in the Company’s discretion as may be necessary, so that after such reductions no portion of any payment or benefit to be paid to you will be an excess parachute payment subject to the deduction limits under Code section 280G and the excise tax under Code section 4999. However, no payment of “deferred compensation” (as defined under Treasury regulation section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury regulation sections 1.409A-1(b)(3) through (b)(12)) may be reduced to the extent that a reduction can be made to any payment or benefit that is not “deferred compensation.”

Determination Process. The determination of whether it is necessary to decrease a payment or benefit to be paid under this agreement must be made in good faith by a nationally recognized accounting firm (the “Accounting Firm”) selected by the Company. This determination will be conclusive and binding upon you and the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity, or group effecting the transaction giving rise to the characterization of any payments as “parachute payments,” Change in Control, we shall appoint another nationally recognized accounting firm to make the determination required under this agreement (in which case, that accounting firm will be referred to as the “Accounting Firm” under this agreement). We shall bear all fees of the Accounting Firm. If a reduction is necessary, you will have the Company shall first reduce right to designate the Retention Bonus to the fullest extent necessary, and second reduce any other particular payment or benefit in the Company’s discretion as may to be necessary, reduced or eliminated so that after such reductions no portion of any the payment or benefit to be paid to you will be an excess parachute payment subject to the deduction limits under Code section Section 280G and the excise tax under Code section Section 4999. However, no payment of “deferred compensation” (as defined under Treasury regulation section Regulation Section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury regulation sections Regulation Sections 1.409A-1(b)(3) through (b)(12)) may be reduced to the extent that a reduction can be made to any payment or benefit that is not “deferred compensation.”