Common use of Excise Tax Adjustment Clause in Contracts

Excise Tax Adjustment. Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received or to be received in connection with a Change in Control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the Severance Payments, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the Excise Tax, then, after taking into account any reduction in the Total Payments provided by reason of section 280G of the Code in such other plan, arrangement or agreement, the cash Severance Payments that do not constitute deferred compensation within the meaning of Section 409A shall first be reduced, all other Severance Payments that do not constitute deferred compensation within the meaning of Section 409A shall be next reduced, and all other Severance Payments that do constitute deferred compensation within the meaning of Section 409A shall thereafter be reduced (beginning with those payments last to be paid), to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (A) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (B) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments); provided, however, that, to the extent permitted by Section 409A of the Code, the Executive may elect to have the noncash Severance Payments reduced (or eliminated) prior to any reduction of the cash Severance Payments.

Excise Tax Adjustment. Notwithstanding any other provisions  Should the total of all amounts or benefits payable under this Agreement, together with any other payments which Employee has a right to receive from the Bank, any affiliates or subsidiaries of the Bank, or any successors of any of the foregoing, result in the event that imposition of an excise tax under Section 4999 of the Internal Revenue Code (or any successor thereto), Employee shall be entitled to an additional “excise tax” adjustment payment in an amount such that, after the payment of all federal and state income and excise taxes, Employee will be in the same after-tax position as if no excise tax had been imposed. Any payment or benefit received or which is required to be received included under Sections 280G or 4999 of the Internal Revenue Code (or any successor provisions thereto) for purposes of determining whether an excise tax is payable shall be deemed a payment “made to Employee” or a payment “which Employee has a right to receive” for purposes of this provision. The Bank (or its successor) shall be responsible for the costs of calculation of the deductibility of payments and benefits and the excise tax by the Executive (including any payment or benefit received or to be received in connection with a Change in Control or the termination Bank’s independent certified accountant and tax counsel and shall notify Employee of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the Severance Payments, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the Excise Tax, then, after taking into account any reduction in the Total Payments provided by reason of section 280G of the Code in such other plan, arrangement or agreement, the cash Severance Payments that do not constitute deferred compensation within the meaning of Section 409A shall first be reduced, all other Severance Payments that do not constitute deferred compensation within the meaning of Section 409A shall be next reduced, and all other Severance Payments that do constitute deferred compensation within the meaning of Section 409A shall thereafter be reduced (beginning with those payments last to be paid), to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (A) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (B) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax excise tax prior to the time such excise tax is due. If at any time it is determined that the additional “excise tax” adjustment payment previously made to Employee was insufficient to cover the effect of the excise tax, the gross-up payment pursuant to this provision shall be increased to make Employee whole, including an amount to cover the payment of any penalties resulting from any incorrect or late payment of the excise tax resulting from the prior calculation. All amounts required to be paid pursuant to this paragraph shall be paid at the time any withholding may be required (or, if earlier, the time Employee shall be required to pay such amounts) under applicable law, and any additional amounts to which the Executive would Employee may be subject in respect entitled shall be paid or reimbursed no later than fifteen (15) days following confirmation of such unreduced Total Payments and after taking into account amount by the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments); Bank’s independent certified accountant provided, however, that, that any payments to be made under this paragraph shall in all events be made no later than the extent permitted by Section 409A end of Employee’s taxable year next following the taxable year in which the Employee remits such excise tax payments. The parties recognize that the actual implementation of the Code, the Executive may elect provisions of this paragraph are complex and agree to have the noncash Severance Payments reduced (deal with each other in good faith to resolve any questions or eliminated) prior to any reduction of the cash Severance Payments.disagreements arising hereunder. 

Excise Tax Adjustment. Notwithstanding any other provisions Should the total of all amounts or benefits payable under this Agreement, together with any other payments which Employee has a right to receive from the Bank, any affiliates or subsidiaries of the Bank, or any successors of any of the foregoing, result in the event that imposition of an excise tax under Section 4999 of the Internal Revenue Code (or any successor thereto), Employee shall be entitled to an additional “excise tax” adjustment payment in an amount such that, after the payment of all federal and state income and excise taxes, Employee will be in the same after-tax position as if no excise tax had been imposed. Any payment or benefit received or which is required to be received included under Sections 280G or 4999 of the Internal Revenue Code (or any successor provisions thereto) for purposes of determining whether an excise tax is payable shall be deemed a payment “made to Employee” or a payment “which Employee has a right to receive” for purposes of this provision. The Bank (or its successor) shall be responsible for the costs of calculation of the deductibility of payments and benefits and the excise tax by the Executive (including any payment or benefit received or to be received in connection with a Change in Control or the termination Bank’s independent certified accountant and tax counsel and shall notify Employee of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the Severance Payments, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the Excise Tax, then, after taking into account any reduction in the Total Payments provided by reason of section 280G of the Code in such other plan, arrangement or agreement, the cash Severance Payments that do not constitute deferred compensation within the meaning of Section 409A shall first be reduced, all other Severance Payments that do not constitute deferred compensation within the meaning of Section 409A shall be next reduced, and all other Severance Payments that do constitute deferred compensation within the meaning of Section 409A shall thereafter be reduced (beginning with those payments last to be paid), to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (A) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (B) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax excise tax prior to the time such excise tax is due. If at any time it is determined that the additional “excise tax” adjustment payment previously made to Employee was insufficient to cover the effect of the excise tax, the gross-up payment pursuant to this provision shall be increased to make Employee whole, including an amount to cover the payment of any penalties resulting from any incorrect or late payment of the excise tax resulting from the prior calculation. All amounts required to be paid pursuant to this paragraph shall be paid at the time any withholding may be required (or, if earlier, the time Employee shall be required to pay such amounts) under applicable law, and any additional amounts to which the Executive would Employee may be subject in respect entitled shall be paid or reimbursed no later than fifteen (15) days following confirmation of such unreduced Total Payments and after taking into account amount by the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments); Bank’s independent certified accountant provided, however, that, that any payments to be made under this paragraph shall in all events be made no later than the extent permitted by Section 409A end of Employee’s taxable year next following the taxable year in which the Employee remits such excise tax payments. The parties recognize that the actual implementation of the Code, the Executive may elect provisions of this paragraph are complex and agree to have the noncash Severance Payments reduced (deal with each other in good faith to resolve any questions or eliminated) prior to any reduction of the cash Severance Paymentsdisagreements arising hereunder.

Excise Tax Adjustment. Notwithstanding any other provisions of this AgreementSubject to the limitation below, in the event that Executive becomes entitled to any payment or benefit under this section 3 (such benefits together with any other payments or benefits payable under any other agreement with, or plan or policy of, Company are referred to in the aggregate as the “Total Payments”), if all or any part of the Total Payments will, as determined by Company, be subject to the tax (the “Excise Tax”) imposed by Code section 4999 (or any similar tax that may hereafter be imposed), then such payment shall be either: (i) provided to Executive in full, or (ii) provided to Executive to such lesser extent as would result in no portion of such payment being subject to such Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, such Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of the payment, notwithstanding that all or some portion of such payment may be taxable under such Excise Tax. To the extent such payment needs to be reduced pursuant to the preceding sentence, reductions shall come from taxable amounts before non-taxable amounts and beginning with the payments otherwise scheduled to occur soonest. Executive agrees to cooperate fully with Company to determine the benefits applicable under this section. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax, and the amounts of such Excise Tax, the following shall apply: (i) Any other payments or benefits received or to be received by the Executive (including any payment or benefit received or to be received in connection with a Change in Control or the Executive’s termination of the Executive’s employment, employment (whether pursuant to the terms of this Agreement or any other plan, policy, arrangement or agreementagreement with Company, or with any Person whose actions result in a Change in Control or any Person affiliated with Company or such Persons) (all such payments and benefits, including shall be treated as “parachute payments” within the Severance Payments, being hereinafter referred to as the “Total Payments”) would be subject (in whole or partmeaning of Code section 280G(b)(2), and all “excess parachute payments” within the meaning of Code section 280G(b)(1) shall be treated as subject to the Excise Tax, then, after taking into account any reduction unless in the Total Payments provided opinion of Company’s tax counsel as supported by reason of section 280G of the Code in Company’s independent auditors and acceptable to Executive, such other plan, arrangement payments or agreement, the cash Severance Payments that benefits (in whole or in part) do not constitute deferred parachute payments, or unless such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 409A shall first be reduced, all other Severance Payments that do not constitute deferred compensation Code section 280G(b)(4) in excess of the base amount within the meaning of Section 409A shall be next reduced, and all other Severance Payments that do constitute deferred compensation within the meaning of Section 409A shall thereafter be reduced (beginning with those payments last to be paidCode section 280G(b)(3), to the extent necessary so that no portion of the Total Payments is or are otherwise not subject to the Excise Tax but only if Tax; (Aii) The value of any noncash benefits or any deferred payment or benefit shall be determined by Company’s independent auditors in accordance with the net amount principles of such Total PaymentsCode sections 280G(d)(3) and (4); and (iii) Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation, as so reduced (and after subtracting the net amount of federal, state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive’s residence on such reduced Total Payments and after taking into account the phase out Termination Date, net of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (B) the net amount maximum reduction in federal income taxes which could be obtained from deduction of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments); provided, however, that, to the extent permitted by Section 409A of the Code, the Executive may elect to have the noncash Severance Payments reduced (or eliminated) prior to any reduction of the cash Severance Paymentstaxes.