Excise Tax Provision. (a) Notwithstanding any other provisions of this Agreement, if a Change of Control occurs during the original or extended term of this Agreement, in the event that any payment or benefit received or to be received by the Executive in connection with the Change of Control of the Company or the termination of the Executive’s employment under this Agreement or any other agreement between the Company and the Executive (all such payments and benefits, including the payments and benefits under Section 2.3(c) hereof, being hereinafter called “Total Payments”) would be subject (in whole or in part), to an excise tax imposed by section 4999 of the Code (the “Excise Tax”), then the cash payments under Section 2.3(c) hereof shall first be reduced, and the noncash payments and benefits under the other sections hereof shall thereafter be reduced, 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 and employment taxes on 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 and employment taxes on such Total Payments and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Payments); provided, however, that the Executive may elect to have the noncash payments and benefits hereof reduced (or eliminated) prior to any reduction of the cash payments under Section 2.3(c) hereof.
(b) 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 opinion of tax counsel (“Tax Counsel”) reasonably acceptable to the Executive and selected by the accounting firm (the “Auditor”) which was, immediately prior to a Change of Control or other event giving rise to a potential Excise Tax, the Company’s independent auditor, does not constitute a “parachute payment” within the meaning of section 280G(b)(2) of the Code (including by reason of section 280G...
Excise Tax Provision. Notwithstanding anything elsewhere in this Agreement to the contrary, if any of the payments or benefits provided for in this Agreement, together with any other payments or benefits which Employee has the right to receive from the Company (or its affiliated companies), would constitute a “parachute payment” as defined in Section 280G(h)(2) of the Code, the parties agree that the payments or benefits provided to Employee pursuant to this Agreement shall be reduced so that the present value of the total amount received by Employee that would constitute a ‘‘parachute payment” will be one dollar less than three times Employee’s base amount (as defined in Section 280G of the Code) and so that no portion of the payment or benefits received by Employee would be subject to the excise tax imposed by Section 4999 of the Code. Any such reduction shall be applied first to any and all payments and benefits that are not considered “nonqualified deferred compensation” for purposes of Section 409A of the Code (in such order and manner as Employee in his sole discretion may determine). After any and all such payments and benefits have been eliminated, any reduction of payments and benefits that are considered “nonqualified deferred compensation” shall be made in reverse chronological order of their payment dates (determined without regard to any acceleration of payment as a result of any Change of Control or other similar event).
Excise Tax Provision. Anything herein to the contrary notwithstanding, to the extent that any payment, entitlement or benefit provided under this Agreement or any other agreement, plan, policy, program or arrangement of the Company (the "Payments") would be subject to the imposition of the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended, or any similar Federal or state law (an "Excise Tax"), the Payments shall be reduced (but not below zero) to the maximum amount as will result in no portion of the Payments being subject to such Excise Tax (the "Safe Harbor Cap"), but only if the net after-tax amount that would be received by the Employee, taking into account all applicable Federal, state and local income taxes and the imposition of the Excise Tax, is greater than the net after-tax amount that would be received by the Employee if Payments are not reduced to the Safe Harbor Cap. Unless the Employee has given prior written notice specifying a different order to the Company to effectuate the reductions described in the preceding sentence, the Company shall reduce or eliminate the Payments to the Safe Harbor Cap, by first reducing or eliminating those payments or benefits which are not payable in cash and then by reducing or eliminating cash payments. Any notice given by the Employee pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Employee's rights and entitlements to any benefit, entitlement or compensation.
Excise Tax Provision. Anything herein to the contrary notwithstanding, to the extent that any payment, entitlement or benefit provided under this offer or any other agreement, plan, policy, program or arrangement of the Company (the “Payments”) would be subject to the imposition of the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any similar Federal or state law (an “Excise Tax”), the Payments shall be reduced (but not below zero) to the maximum amount as will result in no portion of the Payments being subject to such Excise Tax (the “Safe Harbor Cap”), but only if the net after-tax amount that would be received by you, taking into account all applicable Federal, state and local income taxes and the imposition of the Excise Tax, is greater than the net after-tax amount, similarly determined, that would be received by you if Payments are not reduced to the Safe Harbor Cap. If there is a reduction, it shall be implemented as follows: (i) any cash payments, (ii) any taxable benefits, (iii) any nontaxable benefits, and (iv) any vesting of equity awards, in each case in reverse order beginning with payments or benefits that are to be paid the farthest in time from the date of change in control, to the extent necessary to avoid imposition of the excise tax under Code Section 4999.
Excise Tax Provision. Section 5.14 of the SERP, relating to the excise tax imposed by Section 4999 of the Internal revenue code of 1986, as amended, is hereby deleted in its entirety. ************************************************************** The terms of the SERP not hereby amended shall be and remain in full force and effect and are not affected by this Amendment.
Excise Tax Provision. Notwithstanding anything elsewhere in this Agreement to the contrary, if any of the payments or benefits provided for in this Agreement, together with any other payments or benefits which Executive has the right to receive from the Bank (or its affiliated companies), would constitute a “parachute payment” as defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, the parties agree that the payments or benefits provided to Executive pursuant to this Agreement shall be reduced (in each case, in such manner as Executive in his sole discretion shall determine) so that the present value of the total amount received by Executive that would constitute a “parachute payment” will be $1.00 less than three (3) times Executive’s base amount (as defined in Section 280G of the Code) and so that no portion of the payment or benefits received by Executive would be subject to the excise tax imposed by Section 4999 of the Code.
Excise Tax Provision. Notwithstanding anything elsewhere in this Agreement to the contrary, if any of the payments or benefits provided for in this Agreement, together with any other payments or benefits which the Executive has the right to receive from the Company (or its affiliated companies), would constitute a "parachute payment" (as defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Code")), the Executive may elect (i) to have the payments or benefits pursuant to this Agreement reduced so that the present value of the total amount received by the Executive that would constitute a "parachute payment" will be one dollar ($1.00) less than three (3) times the Executive's base amount (as defined in Section 280G of the Code) and so that no portion of the payments or benefits received by the Executive would be subject to the excise tax imposed by Section 4999 of the Code or (ii) to have no such reduction described in Section 8(i) hereof. The foregoing shall not affect the right of the Company to satisfy all tax withholding requirements (including excise tax withholding requirements) with respect to any payments or benefits provided for in this Agreement in the event it shall determine that any such payments or benefits would, regardless of the Executive's election hereunder, be subject to the excise tax imposed by Section 4999 of the Code.
Excise Tax Provision. In the event that any payment, entitlement or benefit made or provided to or for the benefit of the Employee in connection with this Agreement, pursuant to any applicable plan, policy, program or arrangement, or other agreement with the Company or any affiliate or in connection with the Employee's employment with the Company or any affiliate or the termination thereof (a "Payment") is determined to be subject to any excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (or any successor to such section) or under any similar Federal or state law (an "Excise Tax"), the Company shall pay to the Employee, prior to the time any Excise Tax is due in respect to such Payment (through withholding or otherwise), an additional amount (the "Gross-Up Payment") which, after the imposition of all income, employment, excise and other taxes thereon, is equal to the sum of (i) the Excise Tax on such Payments plus (ii) any penalty and interest assessments associated with such excise Tax. The amount and timing of any payment shall promptly be determined by an independent accounting firm selected by the Parties and paid for by the Company. Any Gross-Up Payment shall be paid by the Company to the Employee within five (5) calendar days of the receipt of the accounting form's determination.
Excise Tax Provision. Section 5.14 of the SERP is hereby deleted in its entirety and the following is substituted in lieu thereof:
Excise Tax Provision. (a) If it shall be determined that any amount, right or benefit paid, distributed or treated as paid or distributed by Duke or any Duke Affiliate to or for the Employee's benefit (whether paid or payable or distributed or distributable hereunder or otherwise, but determined without regard to any additional payments required under this Section 4) (a "Payment") would be subject to the excise tax imposed by section 4999 of the Code, or any interest or penalties are incurred by the Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, collectively, the "Excise Tax"), then the Employee shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Employee of all federal, state and local taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
(b) All determinations required to be made under this Section 4, including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm designated jointly by the Employee and Duke (the "Accounting Firm"), which shall be permitted to designate an independent counsel to advise it for this purpose. The Accounting Firm shall provide detailed supporting calculations both to Duke and the Employee within 15 business days of the receipt of notice from the Employee or Duke that there has been a Payment, or such earlier time as is requested by Duke. All fees and expenses of the Accounting Firm and its legal counsel shall be paid by Duke. Any Gross-Up Payment, as determined pursuant to this Section 4, shall be paid by Duke to the Employee (or to the Internal Revenue Service on the Employee's behalf) within five days of the receipt of the Accounting Firm's determination. All determinations made by the Accounting Firm shall be binding upon Duke and the Employee. As a result of the uncertainty regarding the application of section 4999 of the Code hereunder, it is possible that the Internal Revenue Service may assert that an Excise Tax is due that was not included in the Accounting Firm's calculation...
