Common use of Excise Tax Payment Clause in Contracts

Excise Tax Payment. (i) In the event that any payment or benefit received or to be received by the Executive pursuant to the terms of this agreement (the "Contract Payments") or of any other plan, arrangement or agreement of the Company (or any affiliate) (together with the Contract Payments, the "Total Payments") would be subject to the excise tax (the "Excise Tax") imposed by section 4999 of the Code as determined as provided below, then, subject to the provisions of Section5(d)(ii), the Company shall pay to the Executive, at the time specified in Section 5(d)(iii) below, an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of the Excise Tax on Total Payments and any federal, state and local income and employment taxes and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the Executive with respect thereto, shall be equal to the total present value (using the applicable federal rate (as defined in section 1274(d) of the Code in such calculation) of the Total Payments at the time such Total Payments are to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (A) the total amount of the Total Payments shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of the independent auditor of BKB immediately prior to the Effective Date (the "Auditor"), such amount (in whole or in part) does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, or such "excess parachute payments" (in whole or in part) are not subject to the Excise Tax, (B) the amount of the Total Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (1) the total amount of the Total Payments or (2) the amount of "excess parachute payments" within the meaning of section 280G(b)(1) of the Code (after applying clause (A) hereof), and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Executive's residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rate.

Excise Tax Payment. (ia) In Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any payment or benefit received or to be received distribution by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this agreement (the "Contract Payments") Agreement or of otherwise, but determined without regard to any other plan, arrangement or agreement of the Company (or any affiliateadditional payments required under this Section 5) (together with the Contract a “Payment” or “Payments, the "Total Payments"”) would be subject to the excise tax (the "Excise Tax") imposed by section Section 4999 of the Code (or any successor provision) or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as determined as provided below, then, subject to the provisions of Section5(d)(ii“Excise Tax”), the Company then Executive shall pay be entitled to the Executive, at the time specified in Section 5(d)(iii) below, receive an additional amount payment (the "a “Gross-Up Payment"”) in an amount such that the net amount retained after payment by the ExecutiveExecutive of all taxes (including any interest or penalties imposed with respect to such taxes), after deduction of the including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax on Total Payments and any federal, state and local income and employment taxes and the Excise Tax imposed upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the Executive with respect thereto, shall be equal to the total present value (using the applicable federal rate (as defined in section 1274(d) of the Code in such calculation) of the Total Payments at the time such Total Payments are to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (A) the total amount of the Total Payments shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of the independent auditor of BKB immediately prior to the Effective Date (the "Auditor"), such amount (in whole or in part) does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, or such "excess parachute payments" (in whole or in part) are not subject to the Excise Tax, (B) the amount of the Total Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (1) the total amount of the Total Payments or (2) the amount of "excess parachute payments" within the meaning of section 280G(b)(1) of the Code (after applying clause (A) hereof), and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 5(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments do not exceed by more than $100,000 the greatest amount (the “Reduced Amount”) that could be paid to Executive shall be deemed such that the receipt of Payments would not give rise to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals in the calendar year in which the any Excise Tax, then no Gross-Up Payment is to shall be made to Executive and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect Payments, in the state and locality of aggregate, shall be reduced to the Executive's residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rateReduced Amount.

Excise Tax Payment. (i) In the event that any payment or benefit received or to be received by the Executive pursuant to the terms of this agreement (the "Contract Payments") or of any other plan, arrangement or agreement of the Company (or any affiliate) (together with the Contract Payments, the "Total Payments") would be subject to the excise tax (the "Excise Tax") imposed by section 4999 of the Code as determined as provided below, then, subject to the provisions of Section5(d)(iiSection 5(d)(ii), the Company shall pay to the Executive, at the time specified in Section 5(d)(iii) below, an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of the Excise Tax on Total Payments and any federal, state and local income and employment taxes and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the Executive with respect thereto, shall be equal to the total present value (using the applicable federal rate (as defined in section 1274(d) of the Code in such calculation) of the Total Payments at the time such Total Payments are to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (A) the total amount of the Total Payments shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of the independent auditor of BKB Summit immediately prior to the Effective Date (the "Auditor"), such amount (in whole or in part) does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, or such "excess parachute payments" (in whole or in part) are not subject to the Excise Tax, (B) the amount of the Total Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (1) the total amount of the Total Payments or (2) the amount of "excess parachute payments" within the meaning of section 280G(b)(1) of the Code (after applying clause (A) hereof), and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Executive's residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rate.

Excise Tax Payment. (i) In 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 in connection with a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the Company’s assets within the meaning of Section 280G of the Code (a “Change in Control”) or the termination of the Executive’s employment, whether pursuant to the terms of this agreement (the "Contract Payments") Agreement or of any other plan, arrangement or agreement of the Company (or any affiliateagreement) (together with all such payments and benefits, including the Contract Paymentspayments to be made pursuant to Section 5(c) hereof, being hereinafter referred to as the "“Total Payments"”) would be subject (in whole or part), to the excise tax (the "Excise Tax") imposed by section under Section 4999 of the Code as determined as provided below(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 portion of the Total Payments that does not constitute deferred compensation within the meaning of Section 409A of the Code shall first be reduced and the portion of the Total Payments that does constitute deferred compensation within the meaning of Section 409A of the Code shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the provisions of Section5(d)(ii), the Company shall pay to the Executive, at the time specified in Section 5(d)(iiiExcise Tax but only if (A) below, an additional amount (the "Gross-Up Payment") such that the net amount retained by of such Total Payments, as so reduced (and after subtracting the Executive, after deduction net amount of the Excise Tax on Total Payments and any federal, state and local income taxes on such reduced Total Payments and employment taxes after taking into account the phase out of itemized deductions and the Excise Tax upon the Gross-Up Payment, and any interest, penalties personal exemptions attributable to such reduced Total Payments) is greater than or additions to tax payable by the Executive with respect thereto, shall be equal to the total present value (using the applicable federal rate (as defined in section 1274(d) of the Code in such calculation) of the Total Payments at the time such Total Payments are to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (A) the total amount of the Total Payments shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of the independent auditor of BKB immediately prior to the Effective Date (the "Auditor"), such amount (in whole or in part) does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, or such "excess parachute payments" (in whole or in part) are not subject to the Excise Tax, (B) the net amount of the such Total Payments that shall be treated as subject to without such reduction (but after subtracting the Excise Tax shall be equal to the lesser of (1) the total net amount of the Total Payments or (2) the amount of "excess parachute payments" within the meaning of section 280G(b)(1) of the Code (after applying clause (A) hereof)federal, and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at on such Total Payments and the highest marginal rates amount of taxation applicable Excise Tax to individuals as are in effect in the state and locality of the Executive's residence in the calendar year in which the Gross-Up Payment is to Executive would be made, net of the maximum reduction subject in federal income taxes that can be obtained from deduction respect of such state unreduced Total Payments and local taxes, after taking into account any limitations applicable the phase out of itemized deductions and personal exemptions attributable to individuals subject to federal income tax at the highest marginal ratesuch unreduced Total Payments).

Excise Tax Payment. (i) In the event that any payment or benefit received or to be received by the Executive pursuant to the terms of this agreement (the "“Contract Payments"”) or of any other plan, arrangement or agreement of the Company (or any affiliate) (together with the Contract Payments, the "“Total Payments"”) would be subject to the excise tax (the "“Excise Tax"”) imposed by section 4999 of the Code as determined as provided below, then, subject to the provisions of Section5(d)(iiSection 5(d)(ii), the Company shall pay to the Executive, at the time specified in Section 5(d)(iii) below, an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive, after deduction of the Excise Tax on Total Payments and any federal, state and local income and employment taxes and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the Executive with respect thereto, shall be equal to the total present value (using the applicable federal rate (as defined in section 1274(d) of the Code in such calculation) of the Total Payments at the time such Total Payments are to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (A) the total amount of the Total Payments shall be treated as "“parachute payments" ” within the meaning of section 280G(b)(2) of the Code, and all "“excess parachute payments" ” within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of the independent auditor of BKB immediately prior to the Effective Date (the "Auditor"), such amount (in whole or in part) does not constitute a "“parachute payment" ” within the meaning of section 280G(b)(2) of the Code, or such "“excess parachute payments" ” (in whole or in part) are not subject to the Excise Tax, (B) the amount of the Total Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (1) the total amount of the Total Payments or (2) the amount of "“excess parachute payments" ” within the meaning of section 280G(b)(1) of the Code (after applying clause (A) hereof), and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Executive's ’s residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rate.

Excise Tax Payment. (i) In Anything contained in this Agreement to the event that contrary notwithstanding, if any payment of the payments or benefit benefits received or to be received by the Executive pursuant to this Agreement (which the terms parties agree will not include any portion of this agreement payments allocated to the non-solicitation and non-competition provisions of Section 4.5 that are classified as payments of reasonable compensation for purposes of Code Section 280G), when taken together with payments and benefits payable to or on behalf of Executive under any other plans, contracts or arrangements with the Corporation or the Bank (all such payments and benefits, the “Total Payments”), will be subject to excise tax imposed under Code Section 4999 (the "Contract Payments") “Excise Tax”), then Executive shall receive an additional payment in an amount equal to the amount of the Excise Tax actually payable by Executive, without regard to any additional tax, interest or penalty payable by Executive on such additional amount. For example, if the Total Payments would result in an Excise Tax payable by Executive of $300,000, then Executive will be entitled to receive an additional payment of $300,000; however, Executive shall be solely responsible for any additional tax, interest or penalties resulting from the additional $300,000 payment. All calculations required to be made under this Section, including the portion of any other plan, arrangement or agreement of payments to be allocated to the Company restrictive covenants set forth in Section 4.5 (or any affiliatepayments to be allocated to a separate restrictive covenant agreement, if any) (together with will be made by the Contract Payments, the "Total Payments") would be subject to the excise tax (the "Excise Tax") imposed by section 4999 of the Code as determined as provided below, thenCorporation’s independent public accountants, subject to the provisions right of Section5(d)(ii), Executive’s representative to review the Company same. All amounts required to be paid pursuant to this Section shall pay to the Executive, be paid at the time specified in Section 5(d)(iiiany withholding may be required (or, if earlier, the time Executive shall be required to pay such amounts) below, an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of the Excise Tax on Total Payments and any federal, state and local income and employment taxes and the Excise Tax upon the Gross-Up Paymentunder applicable law, and any interest, penalties additional amounts to which Executive may be entitled shall be paid or additions to tax payable reimbursed no later than fifteen (15) days following confirmation of such amount by the Executive with respect theretoCorporation’s independent public accountants; provided, shall be equal to the total present value (using the applicable federal rate (as defined in section 1274(d) of the Code in such calculation) of the Total Payments at the time such Total Payments are however, that any payments to be made. For purposes made under this Section shall in all events be made no later than the end of determining whether any of Executive’s taxable year next following the Total Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (A) the total amount of the Total Payments shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of the independent auditor of BKB immediately prior to the Effective Date (the "Auditor"), such amount (in whole or in part) does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, or such "excess parachute payments" (in whole or in part) are not subject to the Excise Tax, (B) the amount of the Total Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (1) the total amount of the Total Payments or (2) the amount of "excess parachute payments" within the meaning of section 280G(b)(1) of the Code (after applying clause (A) hereof), and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals in the calendar taxable year in which the Gross-Up Payment is to be made and state and local income taxes at Executive remits such Excise Tax payment. The parties recognize that the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality actual implementation of the Executive's residence provisions of this Section are complex and agree to deal with each other in the calendar year in which the Gross-Up Payment is good faith to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account resolve any limitations applicable to individuals subject to federal income tax at the highest marginal ratequestions or disagreements arising hereunder.

Excise Tax Payment. (i) In the event that any payment or benefit received or to be received by the Executive pursuant to the terms of this agreement (the "Contract Payments") or of any other plan, arrangement or agreement of the Company (or any affiliate) (together with the Contract Payments, the "Total Payments") would be subject to the excise tax (the "Excise Tax") imposed by section 4999 of the Code as determined as provided below, then, subject to the provisions of Section5(d)(iiSection 5(d)(ii), the Company shall pay to the Executive, at the time specified in Section 5(d)(iii) below, an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of the Excise Tax on Total Payments and any federal, state and local income and employment taxes and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the Executive with respect thereto, shall be equal to the total present value (using the applicable federal rate (as defined in section 1274(d) of the Code in such calculation) of the Total Payments at the time such Total Payments are to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (A) the total amount of the Total Payments shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of the independent auditor of BKB immediately prior to the Effective Date (the "Auditor"), such amount (in whole or in part) does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, or such "excess parachute payments" (in whole or in part) are not subject to the Excise Tax, (B) the amount of the Total Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (1) the total amount of the Total Payments or (2) the amount of "excess parachute payments" within the meaning of section 280G(b)(1) of the Code (after applying clause (A) hereof), and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Executive's residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rate.