Common use of Excise Tax Provision Clause in Contracts

Excise Tax Provision. (a) Notwithstanding any other contrary provisions in any plan, program or policy of the Company, if all or any portion of the benefits payable under this Agreement, either alone or together with other payments and benefits that the Executive receives or is entitled to receive from the Company, would constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), the Company shall reduce the Executive’s payments and benefits payable under this Agreement to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, but only if, by reason of such reduction, the net after-tax benefit shall exceed the net after-tax benefit if such reduction were not made. “Net after-tax benefit” for these purposes shall mean the sum of (i) the total amount payable to Executive under the Agreement, plus (ii) all other payments and benefits which Executive receives or is then entitled to receive from the Company that, alone or in combination with the payments and benefits payable under the Agreement, would constitute a “parachute payment” within the meaning of Section 280G of the Code (each such benefit hereinafter referred to as an “Additional Parachute Payment”), less (iii) the amount of federal income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to the Executive (based upon the rate in effect for such year as set forth in the Code at the time of the payment under the Agreement), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The parachute payments reduced shall be those that provide Executive the best economic benefit and to the extent any parachute payments are economically equivalent with each other, each shall be reduced pro rata; provided, however, that the Executive may elect to have the noncash payments and benefits due the Executive reduced (or eliminated) prior to any reduction of the cash payments due under this Agreement.

Excise Tax Provision. (a) Notwithstanding any other contrary provisions of this Agreement, if a Change of Control occurs during the original or extended term of this Agreement, in the event that any of the payments or benefits received or to be received by or attributable to the Executive in connection with the Change of Control or the Executive’s termination of employment (whether pursuant to the terms of this Agreement or any other plan, program arrangement or policy of agreement with the Company, if all any Person whose actions result in a Change of Control or any portion of Person affiliated with the benefits payable under this AgreementCompany or such Person) (all such payments and benefits, either alone or together with other including the payments and benefits that under Article V, Section 4(c) hereof, but excluding any payment to be made pursuant to this Article V, Section 5, being hereinafter referred to as the Executive receives “Initial Payments”) will be subject (in whole or is entitled in part) to receive from the Company, would constitute a “parachute payment” within the meaning of Section 280G an excise tax imposed by section 4999 of the Internal Revenue Code of 1986, as amended or any similar tax (the “CodeExcise Tax”), the Company shall reduce pay to the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive’s payments and benefits payable under this Agreement to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, but only if, by reason of such reduction, the net after-tax benefit shall exceed the net after-tax benefit if such reduction were not made. “Net after-tax benefit” for these purposes shall mean the sum after deduction of (i) any Excise Tax on the total amount payable to Executive under the AgreementInitial Payments, plus (ii) all other payments any federal, state and benefits which local income and employment taxes on the Gross-Up Payment, (iii) any Medicare tax on the Gross-Up Payment, and (iv) the Excise Tax on the Gross-Up Payment, shall be equal to the Initial Payments. Notwithstanding the foregoing provisions of this Article V, Section 5(a), if it shall be determined that the Executive receives or is then entitled to receive from a Gross-Up Payment, but that the Company thatpresent value as of the date of the Change of Control, alone or determined in combination accordance with the payments Sections 280G(b)(2)(ii) and benefits payable under the Agreement, would constitute a “parachute payment” within the meaning of Section 280G 280G(d)(4) of the Code (each such benefit hereinafter referred to as an the “Additional Parachute PaymentPresent Value”), less (iii) of the amount Initial Payments does not exceed 110% of federal income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall greatest Present Value of Initial Payments that could be paid to the Executive such that the receipt thereof would not give rise to any Excise Tax (based upon the rate in effect for such year as set forth in the Code at the time of the payment under the Agreement“Safe Harbor Cap”), less (iv) the amount of excise taxes imposed with respect then no Gross-Up Payment shall be made to the payments Executive and benefits described in (i) and (ii) above by Section 4999 of the Code. The parachute payments reduced shall be those that provide Executive the best economic benefit and amounts payable to the extent any parachute payments are economically equivalent with each other, each Executive under this Agreement shall be reduced pro rata; provided, however, to the maximum amount that could be paid to the Executive such that the Executive may elect to have Present Value of the noncash payments and benefits due Initial Payments does not exceed the Executive reduced (or eliminated) prior to any Safe Harbor Cap. The reduction of the cash payments due amounts payable hereunder, if applicable, shall be made by reducing the benefits as elected by the Executive. For purposes of reducing the Initial Payments to the Safe Harbor Cap, only amounts payable under this AgreementAgreement (and no other Initial Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Present Value of the Initial Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Excise Tax Provision. (a) Notwithstanding any other contrary provisions Anything in any plan, program or policy of the Company, if all or any portion of the benefits payable under this Agreement, either alone or together with other payments and benefits that the Executive receives or is entitled to receive from the Company, would constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), the Company shall reduce the Executive’s payments and benefits payable under this Agreement to the extent necessary so contrary notwithstanding and except as set forth below, in the event it shall be determined that no portion thereof shall any payment or distribution by Bancshares to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section ) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the CodeCode or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, but only iftogether with any such interest and penalties, by reason of such reductionare hereinafter collectively referred to as the “Excise Tax”), then the net after-tax benefit Executive shall exceed the net after-tax benefit if such reduction were not made. “Net after-tax benefit” for these purposes shall mean the sum of (i) the total amount payable to Executive under the Agreement, plus (ii) all other payments and benefits which Executive receives or is then be entitled to receive from the Company that, alone or in combination with the payments and benefits payable under the Agreement, would constitute an additional payment (a “parachute payment” within the meaning of Section 280G of the Code (each such benefit hereinafter referred to as an “Additional Parachute Gross-Up Payment”), less ) in an amount such that after payment by the Executive of all taxes (iii) the amount of federal income taxes payable 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 Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing calculated at provisions of this Section, if it shall be determined that the maximum marginal income tax rate for each year in which Executive is entitled to a Gross-Up Payment, but that the foregoing shall Payments do not exceed 110% of the greatest amount (the “Reduced Amount”) that could be paid to the Executive (based upon such that the rate in effect for such year as set forth receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive and the Payments, in the Code at the time of the payment under the Agreement)aggregate, less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The parachute payments reduced shall be those that provide Executive the best economic benefit and to the extent any parachute payments are economically equivalent with each other, each shall be reduced pro rata; provided, however, that to the Executive may elect to have the noncash payments and benefits due the Executive reduced (or eliminated) prior to any reduction of the cash payments due under this AgreementReduced Amount.

Excise Tax Provision. (a) Notwithstanding anything elsewhere in this Agreement to the contrary, if any other contrary provisions in any plan, program or policy of the Company, if all payments or any portion of the benefits payable under provided for in this Agreement, either alone or together with any other payments and or benefits that (the Executive receives or is entitled “Payment”) which Employee has the right to receive from the CompanyBank (or its affiliated companies), would constitute a an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), the Company shall reduce the Executive’s payments ) and benefits payable under this Agreement to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), such Payment shall be reduced to the least extent necessary so that no portion of the Payment shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit shall received by the Employee as a result of such reduction will exceed the net after-tax benefit that would have been received by the Employee if no such reduction were not made. “Net after-tax benefit” for these purposes The Payment shall mean be reduced, if applicable, by the sum Bank in the following order of priority: (iA) the total amount reduction of any cash severance payments otherwise payable to Executive under the Agreement, plus (ii) all other payments and benefits which Executive receives or is then entitled to receive Employee that are exempt from the Company that, alone or in combination with the payments and benefits payable under the Agreement, would constitute a “parachute payment” within the meaning of Section 280G 409A of the Code Code; (each such benefit hereinafter referred B) reduction of any other cash payments or benefits otherwise payable to as an “Additional Parachute Payment”)the Employee that are exempt from Section 409A of the Code, less (iii) the amount but excluding any payments attributable to any acceleration of federal income taxes payable vesting or payments with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to the Executive (based upon the rate in effect for such year as set forth in the Code at the time any equity award that are exempt from Section 409A of the payment under the Agreement), less Code; (ivC) the amount reduction of excise taxes imposed any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments and benefits described that would otherwise be made last in (i) time; and (iiD) above by reduction of any other payments or benefits otherwise payable to the Employee on a pro-rata basis or such other manner that complies with Section 4999 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code. The parachute payments reduced shall be those that provide Executive the best economic benefit and to the extent any parachute payments are economically equivalent with each other, each shall be reduced pro rata; providedIf, however, that such Payment is not reduced as described above, then such Payment shall be paid in full to the Executive may elect Employee and the Employee shall be responsible for payment of any Excise Taxes relating to have the noncash payments and benefits due the Executive reduced (or eliminated) prior to any reduction of the cash payments due under this Agreement.Payment,

Excise Tax Provision. (a) Notwithstanding anything elsewhere in this Agreement to the contrary, if any other contrary provisions in any plan, program or policy of the Company, if all payments or any portion of the benefits payable under provided for in this Agreement, either alone or together with any other payments and or benefits that (the Executive receives or is entitled “Payment”) which Employee has the right to receive from the CompanyBank (or its affiliated companies) or any acquirer of the Bank, would constitute a an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), the Company shall reduce the Executive’s payments ) and benefits payable under this Agreement to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), such Payment shall be reduced to the least extent necessary so that no portion of the Payment shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit shall received by the Employee as a result of such reduction will exceed the net after-tax benefit that would have been received by the Employee if no such reduction were not made. “Net after-tax benefit” for these purposes The Payment shall mean be reduced, if applicable, by the sum Bank in the following order of priority: (iA) the total amount reduction of any cash severance payments otherwise payable to Executive under the Agreement, plus (ii) all other payments and benefits which Executive receives or is then entitled to receive Employee that are exempt from the Company that, alone or in combination with the payments and benefits payable under the Agreement, would constitute a “parachute payment” within the meaning of Section 280G 409A of the Code Code; (each such benefit hereinafter referred B) reduction of any other cash payments or benefits otherwise payable to as an “Additional Parachute Payment”)the Employee that are exempt from Section 409A of the Code, less (iii) the amount but excluding any payments attributable to any acceleration of federal income taxes payable vesting or payments with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to the Executive (based upon the rate in effect for such year as set forth in the Code at the time any equity award that are exempt from Section 409A of the payment under the Agreement), less Code; (ivC) the amount reduction of excise taxes imposed any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments and benefits described that would otherwise be made last in (i) time; and (iiD) above by reduction of any other payments or benefits otherwise payable to the Employee on a pro-rata basis or such other manner that complies with Section 4999 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code. The parachute payments reduced shall be those that provide Executive the best economic benefit and to the extent any parachute payments are economically equivalent with each other, each shall be reduced pro rata; providedIf, however, that such Payment is not reduced as described above, then such Payment shall be paid in full to the Executive may elect Employee and the Employee shall be responsible for payment of any Excise Taxes relating to have the noncash payments and benefits due the Executive reduced (or eliminated) prior to any reduction of the cash payments due under this AgreementPayment.

Excise Tax Provision. In the event it is determined that any payment or benefit (a) Notwithstanding any other contrary provisions in any plan, program or policy of the Company, if all or any portion of the benefits payable under this Agreement, either alone or together with other payments and benefits that the Executive receives or is entitled to receive from the Company, would constitute a “parachute payment” within the meaning of Section 280G 280G(B)(2) of the Internal Revenue Code Code, to Executive or for his benefit paid or payable or distributed or distributable pursuant to the terms of 1986this Agreement or otherwise in connection with, as amended or arising out of, his employment (the “CodePayments”), the Company shall reduce the Executive’s payments and benefits payable under this Agreement to the extent necessary so that no portion thereof shall would be subject to the excise tax imposed by Section 4999 of the CodeCode or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, but only iftogether with any such interest and penalties, by reason are hereinafter collectively referred to as the “Excise Tax”), then the total Payments shall be reduced to the extent the payment of such reduction, the net after-tax benefit shall exceed the net after-tax benefit if such reduction were not made. amounts would cause Executive’s total Payments to constitute an “Net after-tax benefit” for these purposes shall mean the sum of (i) the total amount payable to Executive under the Agreement, plus (ii) all other payments and benefits which Executive receives or is then entitled to receive from the Company that, alone or in combination with the payments and benefits payable under the Agreement, would constitute a “excess parachute payment” within the meaning of under Section 280G of the Code (each and by reason of such benefit hereinafter referred excess parachute payment the Executive would be subject to as an “Additional Parachute Payment”)Excise Tax, less (iii) but only if the amount after-tax value of federal income taxes payable the Payments calculated with respect to the foregoing restriction exceed those calculated at the maximum marginal income tax rate for each year in which without the foregoing restriction. In that event, Executive shall designate those rights, payments, or benefits under this Agreement, any other agreements, and any benefit arrangements that should be paid reduced or eliminated so as to the Executive (based upon the rate in effect for such year as set forth in the Code at the time of avoid having the payment or benefit to Executive under the Agreement), less (iv) the amount of excise taxes imposed with respect this Agreement be deemed to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The be an excess parachute payments reduced shall be those that provide Executive the best economic benefit and to the extent any parachute payments are economically equivalent with each other, each shall be reduced pro ratapayment; provided, however, that the Executive may elect in order to have the noncash payments and benefits due the Executive reduced (or eliminated) prior to any reduction comply with Section 409A of the cash payments due Code, the reduction or elimination will be performed in the order in which each dollar of value subject to a right, payment, or benefit reduces the parachute payment to the greatest extent. All determinations under this subparagraph (h) shall be made at the expense of the Company by a nationally recognized public accounting firm selected by the Company and subject to approval of Executive, which approval shall not be unreasonably withheld. Such determination shall be binding upon Executive and the Company in the absence of manifest error. To the extent the terms of this subsection 5(h) conflict with the terms of an equity award granted pursuant to this Agreement, this subsection 5(h) shall govern.

Excise Tax Provision. (a) Notwithstanding any other contrary provisions Anything in any plan, program or policy of the Company, if all or any portion of the benefits payable under this Agreement, either alone or together with other payments and benefits that the Executive receives or is entitled to receive from the Company, would constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), the Company shall reduce the Executive’s payments and benefits payable under this Agreement to the extent necessary so contrary notwithstanding and except as set forth below, in the event it shall be determined that no portion thereof shall any payment or distribution by Bancshares to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section ) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the CodeCode or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, but only iftogether with any such interest and penalties, by reason of such reductionare hereinafter collectively referred to as the “Excise Tax”), then the net after-tax benefit Executive shall exceed the net after-tax benefit if such reduction were not made. “Net after-tax benefit” for these purposes shall mean the sum of (i) the total amount payable to Executive under the Agreement, plus (ii) all other payments and benefits which Executive receives or is then be entitled to receive from the Company that, alone or in combination with the payments and benefits payable under the Agreement, would constitute an additional payment (a “parachute payment” within the meaning of Section 280G of the Code (each such benefit hereinafter referred to as an “Additional Parachute Gross-Up Payment”), less ) in an amount such that after payment by the Executive of all taxes (iii) the amount of federal income taxes payable 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 Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing calculated at provisions of this Section, if it shall be determined that the maximum marginal income tax rate for each year in which Executive is entitled to a Gross-Up Payment, but that the foregoing shall Payments do not exceed 110% of the greatest amount (the “Reduced Amount”) that could be paid to the Executive (based upon such that the rate in effect for such year as set forth 41304602.5 receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive and the Payments, in the Code at the time of the payment under the Agreement)aggregate, less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The parachute payments reduced shall be those that provide Executive the best economic benefit and to the extent any parachute payments are economically equivalent with each other, each shall be reduced pro rata; provided, however, that to the Executive may elect to have the noncash payments and benefits due the Executive reduced (or eliminated) prior to any reduction of the cash payments due under this AgreementReduced Amount.

Excise Tax Provision. In the event it is determined that any payment or benefit (a) Notwithstanding any other contrary provisions in any plan, program or policy of the Company, if all or any portion of the benefits payable under this Agreement, either alone or together with other payments and benefits that the Executive receives or is entitled to receive from the Company, would constitute a “parachute payment” within the meaning of Section 280G 280G(B)(2) of the Internal Revenue Code Code, to Executive or for her benefit paid or payable or distributed or distributable pursuant to the terms of 1986this Agreement or otherwise in connection with, as amended or arising out of, her employment (the “CodePayments”), the Company shall reduce the Executive’s payments and benefits payable under this Agreement to the extent necessary so that no portion thereof shall would be subject to the excise tax imposed by Section 4999 of the CodeCode or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, but only iftogether with any such interest and penalties, by reason are hereinafter collectively referred to as the “Excise Tax”), then the total Payments shall be reduced to the extent the payment of such reduction, the net after-tax benefit shall exceed the net after-tax benefit if such reduction were not made. amounts would cause Executive’s total Payments to constitute an “Net after-tax benefit” for these purposes shall mean the sum of (i) the total amount payable to Executive under the Agreement, plus (ii) all other payments and benefits which Executive receives or is then entitled to receive from the Company that, alone or in combination with the payments and benefits payable under the Agreement, would constitute a “excess parachute payment” within the meaning of under Section 280G of the Code (each and by reason of such benefit hereinafter referred excess parachute payment the Executive would be subject to as an “Additional Parachute Payment”)Excise Tax, less (iii) but only if the amount after-tax value of federal income taxes payable the Payments calculated with respect to the foregoing restriction exceed those calculated at the maximum marginal income tax rate for each year in which without the foregoing restriction. In that event, Executive shall designate those rights, payments, or benefits under this Agreement, any other agreements, and any benefit arrangements that should be paid reduced or eliminated so as to the Executive (based upon the rate in effect for such year as set forth in the Code at the time of avoid having the payment or benefit to Executive under the Agreement), less (iv) the amount of excise taxes imposed with respect this Agreement be deemed to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The be an excess parachute payments reduced shall be those that provide Executive the best economic benefit and to the extent any parachute payments are economically equivalent with each other, each shall be reduced pro ratapayment; provided, however, that the Executive may elect in order to have the noncash payments and benefits due the Executive reduced (or eliminated) prior to any reduction comply with Section 409A of the cash payments due Code, the reduction or elimination will be performed in the order in which each dollar of value subject to a right, payment, or benefit reduces the parachute payment to the greatest extent. All determinations under this subparagraph (h) shall be made at the expense of the Company by a nationally recognized public accounting firm selected by the Company and subject to approval of Executive, which approval shall not be unreasonably withheld. Such determination shall be binding upon Executive and the Company in the absence of manifest error. To the extent the terms of this subsection 5(h) conflict with the terms of an equity award granted pursuant to this Agreement, this subsection 5(h) shall govern.

Excise Tax Provision. (a) Notwithstanding any other contrary provisions of this Agreement, if a Change of Control occurs during the original or extended term of this Agreement, in the event that any of the payments or benefits received or to be received by or attributable to the Executive in connection with the Change of Control or the Executive’s termination of employment add language from Xxxxx (whether pursuant to the terms of this Agreement or any other plan, program arrangement or policy of agreement with the Company, if all any Person whose actions result in a Change of Control or any portion of Person affiliated with the benefits payable under this AgreementCompany or such Person) (all such payments and benefits, either alone or together with other including the payments and benefits that under Article V, Section 4(c) hereof, but excluding any payment to be made pursuant to this Article V, Section 5, being hereinafter referred to as the Executive receives “Initial Payments”) will be subject (in whole or is entitled in part) to receive from the Company, would constitute a “parachute payment” within the meaning of Section 280G an excise tax imposed by section 4999 of the Internal Revenue Code of 1986, as amended or any similar tax (the “CodeExcise Tax”), the Company shall reduce pay to the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive’s payments and benefits payable under this Agreement to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, but only if, by reason of such reduction, the net after-tax benefit shall exceed the net after-tax benefit if such reduction were not made. “Net after-tax benefit” for these purposes shall mean the sum after deduction of (i) any Excise Tax on the total amount payable to Executive under the AgreementInitial Payments, plus (ii) all other payments any federal, state and benefits which local income and employment taxes on the Gross-Up Payment, (iii) any Medicare tax on the Gross-Up Payment, and (iv) the Excise Tax on the Gross-Up Payment, shall be equal to the Initial Payments. Notwithstanding the foregoing provisions of this Article V, Section 5(a), if it shall be determined that the Executive receives or is then entitled to receive from a Gross-Up Payment, but that the Company thatpresent value as of the date of the Change of Control, alone or determined in combination accordance with the payments Sections 280G(b)(2)(ii) and benefits payable under the Agreement, would constitute a “parachute payment” within the meaning of Section 280G 280G(d)(4) of the Code (each such benefit hereinafter referred to as an the “Additional Parachute PaymentPresent Value”), less (iii) of the amount Initial Payments does not exceed 110% of federal income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall greatest Present Value of Initial Payments that could be paid to the Executive such that the receipt thereof would not give rise to any Excise Tax (based upon the rate in effect for such year as set forth in the Code at the time of the payment under the Agreement“Safe Harbor Cap”), less (iv) the amount of excise taxes imposed with respect then no Gross-Up Payment shall be made to the payments Executive and benefits described in (i) and (ii) above by Section 4999 of the Code. The parachute payments reduced shall be those that provide Executive the best economic benefit and amounts payable to the extent any parachute payments are economically equivalent with each other, each Executive under this Agreement shall be reduced pro rata; provided, however, to the maximum amount that could be paid to the Executive such that the Executive may elect to have Present Value of the noncash payments and benefits due Initial Payments does not exceed the Executive reduced (or eliminated) prior to any Safe Harbor Cap. The reduction of the cash payments due amounts payable hereunder, if applicable, shall be made by reducing the benefits as elected by the Executive. For purposes of reducing the Initial Payments to the Safe Harbor Cap, only amounts payable under this AgreementAgreement (and no other Initial Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Present Value of the Initial Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Excise Tax Provision. (a) Notwithstanding any other contrary provisions in any plan, program or policy of any member of the CompanyGroup, if all or any portion of the benefits payable under this Agreement, either alone or together with other payments and benefits that the Executive receives or is entitled to receive from any member of the CompanyGroup, would constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), the Company shall reduce the Executive’s payments and benefits payable under this Agreement to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, but only if, by reason of such reduction, the net after-tax benefit shall exceed the net after-tax benefit if such reduction were not made. “Net after-tax benefit” for these purposes shall mean the sum of (i) the total amount payable to Executive under the this Agreement, plus (ii) all other payments and benefits which Executive receives or is then entitled to receive from any member of the Company Group that, alone or in combination with the payments and benefits payable under the this Agreement, would constitute a “parachute payment” within the meaning of Section 280G of the Code (each such benefit hereinafter referred to as an “Additional Parachute Payment”), less (iii) the amount of federal income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to the Executive (based upon the rate in effect for such year as set forth in the Code at the time of the payment under the this Agreement), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The parachute payments reduced shall be those that provide Executive the best economic benefit and to the extent any parachute payments are economically equivalent with each other, each shall be reduced pro rata; provided, however, that the Executive may elect to have the noncash payments and benefits due the Executive reduced (or eliminated) prior to any reduction of the cash payments due under this Agreement.

Excise Tax Provision. In the event it is determined that any payment or benefit (a) Notwithstanding any other contrary provisions in any plan, program or policy of the Company, if all or any portion of the benefits payable under this Agreement, either alone or together with other payments and benefits that the Executive receives or is entitled to receive from the Company, would constitute a “parachute payment” within the meaning of Section 280G 280G(B)(2) of the Internal Revenue Code Code) to Executive or for his benefit paid or payable or distributed or distributable pursuant to the terms of 1986this Agreement or otherwise in connection with, as amended or arising out of, his employment (the “CodePayments”), the Company shall reduce the Executive’s payments and benefits payable under this Agreement to the extent necessary so that no portion thereof shall would be subject to the excise tax imposed by Section 4999 of the CodeCode or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, but only iftogether with any such interest and penalties, by reason are hereinafter collectively referred to as the “Excise Tax”), then the total Payments shall be reduced to the extent the payment of such reduction, the net after-tax benefit shall exceed the net after-tax benefit if such reduction were not made. amounts would cause Executive’s total Payments to constitute an “Net after-tax benefit” for these purposes shall mean the sum of (i) the total amount payable to Executive under the Agreement, plus (ii) all other payments and benefits which Executive receives or is then entitled to receive from the Company that, alone or in combination with the payments and benefits payable under the Agreement, would constitute a “excess parachute payment” within the meaning of under Section 280G of the Code (each and by reason of such benefit hereinafter referred excess parachute payment the Executive would be subject to as an “Additional Parachute Payment”)Excise Tax, less (iii) but only if the amount after-tax value of federal income taxes payable the Payments calculated with respect to the foregoing restriction exceed those calculated at the maximum marginal income tax rate for each year in which without the foregoing restriction. In that event, Executive shall designate those rights, payments, or benefits under this Agreement, any other agreements, and any benefit arrangements that should be paid reduced or eliminated so as to the Executive (based upon the rate in effect for such year as set forth in the Code at the time of avoid having the payment or benefit to Executive under the Agreement), less (iv) the amount of excise taxes imposed with respect this Agreement be deemed to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The be an excess parachute payments reduced shall be those that provide Executive the best economic benefit and to the extent any parachute payments are economically equivalent with each other, each shall be reduced pro ratapayment; provided, however, that the Executive may elect in order to have the noncash payments and benefits due the Executive reduced (or eliminated) prior to any reduction comply with Section 409A of the cash payments due Code, the reduction or elimination will be performed in the order in which each dollar of value subject to a right, payment, or benefit reduces the parachute payment to the greatest extent. All determinations under this subparagraph (h) shall be made at the expense of the Company by a nationally recognized public accounting firm selected by the Company and subject to approval of Executive, which approval shall not be unreasonably withheld. Such determination shall be binding upon Executive and the Company in the absence of manifest error. To the extent the terms of this subsection 5(h) conflict with the terms of an equity award granted pursuant to this Agreement, this subsection 5(h) shall govern.”

Excise Tax Provision. (a) Notwithstanding any other contrary 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 Employee in connection with the Change of Control or the termination of the Employee's employment (whether pursuant to the terms of this Agreement or any other plan, program arrangement or policy of agreement with the Company, if all any Person whose actions result in the Change of Control or any portion of Person Affiliated with the benefits payable under this AgreementCompany or such Person) (all such payments and benefits, either alone or together with other including the payments and benefits that under Section 3.3(a) hereof, being hereinafter called "Total Payments") would be subject (in whole or in part), to an excise tax imposed by section 4999 of the Executive receives or is entitled to receive from Code (the Company"Excise Tax"), would constitute a “parachute payment” within then, after taking into account any reduction in the meaning Total Payments provided by reason of Section section 280G of the Internal Revenue Code of 1986in such other plan, as amended (the “Code”)arrangement or agreement, the Company cash payments under Section 3.3(a) hereof shall reduce first be reduced, and the Executive’s noncash payments and benefits payable under this Agreement Sections 3.3(a) and 3.9 hereof shall thereafter be reduced, to the extent necessary so that no portion thereof shall be of the Total Payments is subject to the excise tax imposed by Section 4999 of the Code, Excise Tax but only if, by reason if (A) the net amount of such reductionTotal Payments, as so reduced (and after subtracting the net after-tax benefit shall exceed amount of federal, state and local income and employment taxes on such reduced Total Payments) is greater than or equal to (B) the net after-tax benefit if amount of such Total Payments without such reduction were not made. “Net after-tax benefit” for these purposes shall mean (but after subtracting the sum net amount of (i) the total amount payable to Executive under the Agreementfederal, plus (ii) all other payments state and benefits which Executive receives or is then entitled to receive from the Company that, alone or in combination with the payments local income and benefits payable under the Agreement, would constitute a “parachute payment” within the meaning of Section 280G of the Code (each employment taxes on such benefit hereinafter referred to as an “Additional Parachute Payment”), less (iii) Total Payments and the amount of federal income taxes payable with respect Excise Tax to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall Employee would be paid to the Executive (based upon the rate subject in effect for respect of such year as set forth in the Code at the time of the payment under the Agreementunreduced Total Payments), less (iv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The parachute payments reduced shall be those that provide Executive the best economic benefit and to the extent any parachute payments are economically equivalent with each other, each shall be reduced pro rata; provided, however, that the Executive Employee may elect to have the noncash payments and benefits due the Executive under Sections 3.3(a) and 3.9 hereof reduced (or eliminated) prior to any reduction of the cash payments due under this AgreementSection 3.3(a) hereof.