Common use of Excise Tax Indemnification Clause in Contracts

Excise Tax Indemnification. If the Internal Revenue Service asserts, or if Executive or the Company is advised in writing by a "Big Five" accounting firm, that any payment in the nature of compensation to, or for the benefit of, Executive from the Company (or any successor in interest) constitutes an "excess parachute payment" under section 280G of the Code, whether paid pursuant to this Agreement or any other agreement, and including property transfers pursuant to stock options and other employee benefits that vest upon a change in the ownership of effective control of the Company (collectively, the "Excess Parachute Payments") the Company shall pay to Executive, on demand, a cash sum sufficient (on a grossed-up basis) to indemnify Executive and hold him harmless from the following (the "Tax Indemnity Payment"): (i) The amount of excise tax under section 4999 of the Code on the entire amount of the Excess Parachute Payments and all Tax Indemnity Payments to Executive pursuant to this subsection B: (ii) The amount of all estimated local, state, and federal income taxes on all Tax Indemnity Payments to Executive pursuant to this subsection B (determined in each case at the highest marginal tax rate); (iii) The amount of any fines, penalties, or interest that have been or potentially will be, assessed in respect of any excise or income tax described in the preceding clauses (a) or (b); so the amounts of Excess Parachute Payments received by Executive will not be diminished by an excise tax imposed under section 4999 of the Code or by any local, state, or federal income tax payable in respect of the Tax Indemnity Payments received by Executive pursuant to this subsection B.

Excise Tax Indemnification. If the Internal Revenue Service asserts, or if Executive or the Company is advised in writing by a "Big Five" accounting firm, that any payment in the nature of compensation to, or for the benefit of, Executive from the Company (or any successor in interest) constitutes an "excise tax on “excess parachute payment" under section payments,” as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), whether paid pursuant to will be imposed on the Executive under Code Section 4999 as a result of the Executive’s receipt of any payment under this Agreement or any other agreementpayment, benefit, or compensation (without regard to the “Additional Amount” described below) which the Executive receives or has the right to receive from the Company or any of its affiliates (the “Change of Control Benefits”), the Company shall indemnify the Executive and hold him harmless against all claims, losses, damages, penalties, expenses, and including property transfers pursuant excise taxes related to stock options and other employee benefits that vest upon a change in the ownership of effective control of the Company (collectivelyexcise tax under Code section 4999. To effect this indemnification, the "Excess Parachute Payments") the Company shall pay to Executive, on demand, a cash sum the Executive the “Additional Amount” described in this Section 14. The Additional Amount shall be the amount that is sufficient (on a grossed-up basis) to indemnify Executive and hold him the Executive harmless from the following (application of Code section 280G and 4999, including the "Tax Indemnity Payment"): amount of (i) The amount the excise tax that will be imposed on the Executive under Code section 4999 with respect to the Change of Control Benefits; (ii) the additional (A) excise tax under Code section 4999 4999, (B) hospital insurance tax under Code section 3111(b) and (C) federal, state and local income taxes for which the Executive is or will be liable on account of the Code on the entire amount payment of the Excess Parachute Payments amount described in item (i); and all Tax Indemnity Payments to (iii) the further excise, hospital insurance and income taxes for which the Executive pursuant to this subsection B: is or will be liable on account of the payment of the amount described in item (ii) and this item (iii) and any other indemnification payment under this Section 14. The amount Additional Amount shall be calculated and paid to the Executive at the time that the Change of all estimated localControl Benefits are paid to the Executive. In calculating the Additional Amount, state, and federal income taxes on all Tax Indemnity Payments to Executive pursuant to this subsection B (determined in each case at the highest marginal tax rate); rates of federal and applicable state and local income taxes applicable to individuals and in effect for the year in which the Change in Control occurs shall be used. Nothing in this Section 14 shall give the Executive the right to receive indemnification from the Company or its affiliates for federal, state or local income taxes or hospital insurance taxes payable solely as a result of the Executive’s receipt of (a) the Change of Control Benefits or (b) any additional payment, benefit or compensation other than additional compensation in the form of the Additional Amount. As specified in items (ii) and (iii) above, all income, hospital insurance and additional excise taxes resulting from additional compensation in the form of the excise tax payment specified in item (i) above shall be paid to the Executive. The amount provisions of any finesthis Section 14 are illustrated by the following example: Assume that the Change of Control Benefits result in a total federal, penalties, or interest that have been or potentially will be, assessed in respect of any excise or state and local income tax described in the preceding clauses (a) or (b); so the amounts and employment tax liability of Excess Parachute Payments received by Executive will not be diminished by $180,000 and an excise tax imposed liability under section Code Section 4999 of $70,000. Under such circumstances, the Code or by any localExecutive is solely responsible for the $180,000 income and employment tax liability; and the Additional Amount that the Company must pay to the Executive equals $70,000, stateplus an amount necessary to indemnify the Executive for all federal, or federal state and local income tax payable in respect taxes, hospital insurance taxes, and excise taxes that will result from the $70,000 payment to the Executive and from all further indemnification to the Executive of taxes attributable to the Tax Indemnity Payments received by Executive pursuant to this subsection B.initial $70,000 payment.

Excise Tax Indemnification. If the Internal Revenue Service asserts, or if Executive or the Management Company is advised in writing by a "Big Five" accounting firm, that any payment in the nature of compensation to, or for the benefit of, Executive from the Management Company (or any successor in interest) constitutes an "excess parachute payment" under section 280G of the Internal Revenue Code, whether paid pursuant to this Agreement or any other agreement, and including property transfers pursuant to stock options securities and other employee benefits that vest upon a change in the ownership of effective control of the Management Company (collectively, the "Excess Parachute Payments") the Management Company shall pay to Executive, on demand, a cash sum sufficient (on a grossed-up basis) to indemnify Executive and hold him harmless from the following (the "Tax Indemnity Payment"): (i) The amount of excise tax under section 4999 of the Internal Revenue Code on the entire amount of the Excess Parachute Payments and all Tax Indemnity Payments to Executive pursuant to this subsection BC: (ii) The amount of all estimated local, state, and federal income taxes on all Tax Indemnity Payments to Executive pursuant to this subsection B C (determined in each case at the highest marginal tax rate); (iii) The amount of any fines, penalties, or interest that have been or potentially will be, assessed in respect of any excise or income tax described in the preceding clauses (a) or (b); so the amounts of Excess Parachute Payments received by Executive will not be diminished by an excise tax imposed under section 4999 of the Internal Revenue Code or by any local, state, or federal income tax payable in respect of the Tax Indemnity Payments received by Executive pursuant to this subsection B.C.

Excise Tax Indemnification. If the Internal Revenue Service asserts, or if Executive or the Company is advised in writing by a "Big Five" nationally recognized accounting firm, that any payment in the nature of compensation to, or for the benefit of, Executive from the Company (or any successor in interest) constitutes an "excess parachute payment" under section 280G of the Internal Revenue Code, whether paid pursuant to this Agreement or any other agreement, and including property transfers pursuant to stock options securities and other employee benefits that vest upon a change in the ownership of effective control of the Company (collectively, the "Excess Parachute Payments") the Company shall pay to Executive, on demand, a cash sum sufficient (on a grossed-grossed- up basis) to indemnify Executive and hold him harmless from the following (the "Tax Indemnity Payment"): (i) The amount of excise tax under section 4999 of the Internal Revenue Code on the entire amount of the Excess Parachute Payments and all Tax Indemnity Payments to Executive pursuant to this subsection BC: (ii) The amount of all estimated local, state, and federal income taxes on all Tax Indemnity Payments to Executive pursuant to this subsection B C (determined in each case at the highest marginal tax rate); (iii) The amount of any fines, penalties, or interest that have been or potentially will be, assessed in respect of any excise or income tax described in the preceding clauses (a) or (b); so the amounts of Excess Parachute Payments received by Executive will not be diminished by an excise tax imposed under section 4999 of the Internal Revenue Code or by any local, state, or federal income tax payable in respect of the Tax Indemnity Payments received by Executive pursuant to this subsection B.C.

Excise Tax Indemnification. If the Internal Revenue Service asserts, or if Executive EXECUTIVE or the Company EMPLOYER is advised in writing by a "Big Five" accounting firm, that any payment in the nature of compensation to, or for the benefit of, Executive EXECUTIVE from the Company EMPLOYER (or any successor in interest) constitutes an "excess parachute payment" under section 280G of the Internal Revenue Code, whether paid pursuant to this Agreement or any other agreement, and including property transfers pursuant to stock options securities and other employee benefits that vest upon a change in the ownership of effective control of the Company EMPLOYER (collectively, the "Excess Parachute Payments") the Company EMPLOYER shall pay to ExecutiveEXECUTIVE, on demand, a cash sum sufficient (on a grossed-up basis) to indemnify Executive EXECUTIVE and hold him harmless from the following (the "Tax Indemnity Payment"): (i) The the amount of excise tax under section 4999 of the Internal Revenue Code on the entire amount of the Excess Parachute Payments and all Tax Indemnity Payments to Executive EXECUTIVE pursuant to this subsection B:Section 9.6; (ii) The the amount of all estimated local, state, state and federal income taxes on all Tax Indemnity Payments to Executive EXECUTIVE pursuant to this subsection B Section 9.6 (determined in each case at the highest marginal tax rate);; and (iii) The the amount of any fines, penalties, penalties or interest that have been or potentially will be, assessed in respect of any excise or income tax described in the preceding clauses (ai) or (bii); so the amounts of Excess Parachute Payments received by Executive EXECUTIVE will not be diminished by an excise tax imposed under section 4999 of the Internal Revenue Code or by any local, state, state or federal income tax payable in respect of the Tax Indemnity Payments received by Executive EXECUTIVE pursuant to this subsection B.Section 9.6.

Excise Tax Indemnification. If the Internal Revenue Service asserts(a) For purposes of this Agreement, or if Executive or the Company is advised in writing by a "Big Five" accounting firm, that “Covered Benefits” shall mean any payment in or benefit paid or provided to the nature of compensation toEmployee by the Company, the Bank or for the benefit of, Executive from the Company (any affiliate or any successor in interest) constitutes an "excess parachute payment" under section 280G of interest to the Code, Company or the Bank (whether paid pursuant to this Agreement or any other agreement, and including property transfers pursuant to stock options and other employee benefits otherwise) that vest upon a change will be (or in the ownership opinion of effective control Tax Counsel (as defined below) might reasonably be expected to be) subject to any excise tax (the “Excise Tax”) imposed under Section 4999 of the Company Internal Revenue Code of 1986, as amended (collectivelythe “Code”). In the event that at any time during or after the Term of Employment the Employee shall receive any Covered Benefits, the "Excess Parachute Payments") the Company shall pay to Executive, on demand, a cash sum sufficient the Employee an additional amount (on a grossedthe “Gross-up basisUp Payment”) to indemnify Executive and hold him harmless such that the net amount retained by the Employee from the following (Gross-Up Payment, after deduction of any federal, state and local income taxes, Excise Tax, and FICA and Medicare withholding taxes on the "Gross-Up Payment, shall be equal to the Excise Tax Indemnity Payment"): on the Covered Benefits. For purposes of determining the amount of such Excise Tax on the Covered Benefits, the amount of the Covered Benefits that shall be taken into account in calculating the Excise Tax shall be equal to (i) The amount of excise tax under section 4999 of the Code on the entire amount of the Excess Parachute Payments and all Tax Indemnity Payments to Executive pursuant to this subsection B: Covered Benefits, less (ii) The the amount of all estimated localsuch Covered Benefits that, state, and federal income taxes on all Tax Indemnity Payments to Executive pursuant to this subsection B (determined in each case at the highest marginal tax rate); (iii) The amount of any fines, penalties, or interest that have been or potentially will be, assessed in respect of any excise or income tax described in the preceding clauses opinion of tax counsel selected by the Company and reasonably acceptable to the Employee (a“Tax Counsel”), are not parachute payments (within the meaning of Section 280G(b)(1) or (b); so the amounts of Excess Parachute Payments received by Executive will not be diminished by an excise tax imposed under section 4999 of the Code or by any local, state, or federal income tax payable in respect of the Tax Indemnity Payments received by Executive pursuant to this subsection B.Code).

Excise Tax Indemnification. If the Internal Revenue Service asserts, or if Executive or the Company is advised in writing by a "Big Five" nationally recognized accounting firm, that any payment in the nature of compensation to, or for the benefit of, Executive from the Company (or any successor in interest) constitutes an "excess parachute payment" under section 280G of the Internal Revenue Code, whether paid pursuant to this Agreement or any other agreement, and including property transfers pursuant to stock options securities and other employee benefits that vest upon a change in the ownership of effective control of the Company (collectively, the "Excess Parachute Payments") the Company shall pay to Executive, on demand, a cash sum sufficient (on a grossed-up basis) to indemnify Executive and hold him harmless from the following (the "Tax Indemnity Payment"): (i) The amount of excise tax under section 4999 of the Internal Revenue Code on the entire amount of the Excess Parachute Payments and all Tax Indemnity Payments to Executive pursuant to this subsection B:C; (ii) The amount of all estimated local, state, and federal income taxes on all Tax Indemnity Payments to Executive pursuant to this subsection B C (determined in each case at the highest marginal tax rate);; and (iii) The amount of any fines, penalties, or interest that have been or potentially will be, assessed in respect of any excise or income tax described in the preceding clauses (ai) or (bii); so the amounts of Excess Parachute Payments received by Executive will not be diminished by an excise tax imposed under section 4999 of the Internal Revenue Code or by any local, state, or federal income tax payable in respect of the Tax Indemnity Payments received by Executive pursuant to this subsection B.C.

Excise Tax Indemnification. If the Internal Revenue Service asserts(a) For purposes of this Agreement, or if Executive or the Company is advised in writing by a "Big FiveCovered Benefits" accounting firm, that shall mean any payment in or benefit paid or provided to the nature of compensation toEmployee by the Company, the Bank or for the benefit of, Executive from the Company (any affiliate or any successor in interest) constitutes an "excess parachute payment" under section 280G of interest to the Code, Company or the Bank (whether paid pursuant to this Agreement or any other agreement, and including property transfers pursuant to stock options and other employee benefits otherwise) that vest upon a change will be (or in the ownership opinion of effective control Tax Counsel (as defined below) might reasonably be expected to be) subject to any excise tax (the "Excise Tax") imposed under Section 4999 of the Company Internal Revenue Code of 1986, as amended (collectively, the "Excess Parachute PaymentsCode") ). In the event that at any time during or after the Term of Employment the Employee shall receive any Covered Benefits, the Company shall pay to Executive, on demand, a cash sum sufficient (on a grossed-up basis) to indemnify Executive and hold him harmless from the following Employee an additional amount (the "Tax Indemnity Gross-Up Payment"): ) such that the net amount retained by the Employee from the Gross-Up Payment, after deduction of any federal, state and local income taxes, Excise Tax, and FICA and Medicare withholding taxes on the Gross-Up Payment, shall be equal to the Excise Tax on the Covered Benefits. For purposes of determining the amount of such Excise Tax on the Covered Benefits, the amount of the Covered Benefits that shall be taken into account in calculating the Excise Tax shall be equal to (i) The amount of excise tax under section 4999 of the Code on the entire amount of the Excess Parachute Payments and all Tax Indemnity Payments to Executive pursuant to this subsection B: Covered Benefits, less (ii) The the amount of all estimated localsuch Covered Benefits that, state, and federal income taxes on all Tax Indemnity Payments to Executive pursuant to this subsection B (determined in each case at the highest marginal tax rate); (iii) The amount of any fines, penalties, or interest that have been or potentially will be, assessed in respect of any excise or income tax described in the preceding clauses opinion of tax counsel selected by the Company and reasonably acceptable to the Employee (a"Tax Counsel"), are not parachute payments (within the meaning of Section 280G(b)(1) or (b); so the amounts of Excess Parachute Payments received by Executive will not be diminished by an excise tax imposed under section 4999 of the Code or by any local, state, or federal income tax payable in respect of the Tax Indemnity Payments received by Executive pursuant to this subsection B.Code).

Excise Tax Indemnification. If the Internal Revenue Service asserts, or if Executive or the Company is advised in writing by a "Big Five" nationally recognized accounting firm, that any payment in the nature of compensation to, or for the benefit of, Executive from the Company (or any successor in interest) constitutes an "“excess parachute payment" ” under section 280G of the Internal Revenue Code, whether paid pursuant to this Agreement or any other agreement, and including property transfers pursuant to stock options securities and other employee benefits that vest upon a change in the ownership of effective control of the Company (collectively, the "“Excess Parachute Payments"”) the Company shall pay to Executive, on demand, a cash sum sufficient (on a grossed-grossed- up basis) to indemnify Executive and hold him harmless from the following (the "“Tax Indemnity Payment"”): (i) The amount of excise tax under section 4999 of the Internal Revenue Code on the entire amount of the Excess Parachute Payments and all Tax Indemnity Payments to Executive pursuant to this subsection B:C; (ii) The amount of all estimated local, state, and federal income taxes on all Tax Indemnity Payments to Executive pursuant to this subsection B C (determined in each case at the highest marginal tax rate);; and (iii) The amount of any fines, penalties, or interest that have been or potentially will be, assessed in respect of any excise or income tax described in the preceding clauses (ai) or (bii); so the amounts of Excess Parachute Payments received by Executive will not be diminished by an excise tax imposed under section 4999 of the Internal Revenue Code or by any local, state, or federal income tax payable in respect of the Tax Indemnity Payments received by Executive pursuant to this subsection B.C.

Excise Tax Indemnification. If of the Agreement is amended to add the following paragraph: If, in the written opinion of a Big 6 accounting firm engaged by either the Company or the Exeuctive for this purpose (at the Company's expense), or if so alleged by the Internal Revenue Service assertsService, or if Executive or unless the Company is advised by written notice to the Executive elects to contest the allegation by the Internal Revenue Serviece (at the Company's expense), in writing by a "Big Five" accounting firmwhich case no payment hereunder shall be paid and the Company shall prosecute its position to any conclusion it chooses, that any payment in the nature aggregate of compensation to, or for the benefit ofpayments received by the Executive pursuant to the Employment Agreement executed on August 1, 1993 by the Executive from and Pharmacy Management Services, Inc. ("PMSI") and any and all Addenda, including the Company Severance Agreement executed by the Executive and PMSI as amended on February 15, 1995, (or any successor in interest) constitutes the "Payments"), would constitute an "excess parachute payment" under section 280G as defined in Section 280G(b) of the Code, whether paid pursuant to this Agreement or any other agreement, and including property transfers pursuant to stock options and other employee benefits that vest upon a change in the ownership of effective control of the Company (collectively, the "Excess Parachute Payments") the Company shall pay to Executive, on demand, a cash sum sufficient (on a grossed-up basis) to indemnify Executive and hold him harmless from the following Internal Revenue Code (the "Tax Indemnity Code"), then the Company will pay to the Executive an additional amount in cash (the "Gross-Up Payment"): ) equal to the amount necessary to cause the net amount of Payments retained by the Executive, after deduction of any (i) The amount of excise tax under section on the payments provided for in this paragraph; (ii) federal, state or local income tax on Gross-Up Payment, and (iii) excise tax on the Gross-Up Payment, to be equal to the aggregate remuneration the Executive would have received pursuant to the Payments, excluding such Gross-Up Payment (net of all federal, state and local excise and income taxes), as if Section 280G(b) and 4999 of the Code on (and any successor provisions thereto) had not been enacted into law. The Gross-Up Payment provided for in this Paragraph shall be made within thirty (30) days after such final determination by the entire amount of the Excess Parachute Payments and all Tax Indemnity Payments to Executive pursuant to Internal Revenue Service. Any payments under this subsection B: (ii) The amount of all estimated local, state, and federal income taxes on all Tax Indemnity Payments to Executive pursuant to this subsection B (determined Paragraph shall be in each case at the highest marginal tax rate); (iii) The amount lieu of any finesgross-up payments otherwise due Executive under any agreement with PMSI, penaltiesPCA, or interest that have been or potentially will be, assessed in respect of any excise or income tax described in the preceding clauses (a) or (b); so the amounts of Excess Parachute Payments received by Executive will not be diminished by an excise tax imposed under section 4999 of the Code or by any local, state, or federal income tax payable in respect of the Tax Indemnity Payments received by Executive pursuant Company relating to this subsection B.said Payments.