Common use of Gross-up If Excise Tax Would Apply Clause in Contracts

Gross-up If Excise Tax Would Apply. In the event Executive becomes entitled to any amounts or benefits payable in connection with a Change in Control or other change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the Company shall pay to Executive at the time specified in Section 9(b)(iii) hereof an additional amount (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment provided for by Section 9(b)(i), shall be equal to the Total Payments. (i) For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax: (A) any other payments or benefits received or to be received by Executive in connection with a Change in Control or Executive's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute 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, unless in the opinion of nationally-recognized tax counsel selected by Executive such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; (B) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (x) the total amount of the Total Payments and (y) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 9(b)(i)(A) hereof); and (C) the value of any non-cash benefits or any deferred payments or benefit shall be determined by a nationally-recognized accounting firm selected by Executive in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (ii) For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of Executive's employment, Executive shall repay to the Company within ten days after the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by Executive if such repayment results in a reduction in Excise Tax and/or federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess within ten days after the time that the amount of such excess is finally determined. (iii) The payments provided for in this Section 9(b) shall be made not later than the fifteenth day following the date of Executive's termination of employment; provided, however, that if the amount of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth day after the date of Executive's termination of employment. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifteenth day after the demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (iv) All determinations under this Section 9(b) shall be made at the expense of the Company by a nationally recognized public accounting firm selected by Executive, and such determination shall be binding upon Executive and the Company.

Gross-up If Excise Tax Would Apply. In the event Executive becomes entitled to any amounts or benefits payable in connection with a Change in Control or other change in ownership or control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance “Change in Control Payments"”), if any of such Severance Change in Control Payments are subject to the tax (the "“Excise Tax"”) imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the Company Bank shall pay to Executive at the time specified in Section 9(b)(iii) hereof an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment payments provided for by Section 9(b)(i9(b), shall be equal to the Total Payments. (i) For purposes of determining whether any of the Severance Change in Control Payments will be subject to the Excise Tax and the amount of such Excise Tax: (A) any other payments or benefits received or to be received by Executive in connection with a Change in Control or other change in ownership or control or Executive's ’s termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the CompanyBank, any Person whose actions result in a Change in Control or any Person affiliated with the Company Bank or such Person) (which, together with the Severance Change in Control Payments, constitute 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, unless in the opinion of nationally-recognized tax counsel selected by Executive such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; (B) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (x) the total amount of the Total Payments and (y) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 9(b)(i)(A) hereof); and (C) the value of any non-cash benefits or any deferred payments or benefit shall be determined by a nationally-recognized accounting firm selected by Executive in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (ii) For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence on in the Date of Terminationcalendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could actually be obtained from deduction of such state and local taxestaxes by Executive. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time and paid to Executive hereunder, Executive shall file for a refund of termination of Executive's employment, such excess Excise Tax. Executive shall repay to the Company Bank the excess Excise Tax amount actually refunded to Executive by the Internal Revenue Service within ten business days after the time later of (A) the date that the Internal Revenue Service makes a final determination (within the meaning of Section 1313 of the Code) that an overpayment of such Excise Tax was made (and including a final determination of the amount thereof) and (B) the actual receipt of the refund check from the Internal Revenue Service for the amount of such reduction in overpayment of Excise Tax is finally determined the portion by Executive; provided, however, if no refund shall be due to Executive because such overpayment of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax has been applied to satisfy Executive’s other tax liabilities, Executive shall notify the Bank of such application of the overpayment to Executive’s other tax liabilities and federal and state and local income shall pay to the Bank within ten business days after such application of the overpayment to Executive’s other tax imposed on the Gross-Up Payment being repaid by Executive if such repayment results in a reduction in Excise Tax and/or federal and state and local income tax deduction) plus interest on liabilities the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the CodeExcise Tax that would otherwise have been refunded. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment)and paid hereunder, the Company Bank shall make an additional grossGross-up payment Up Payment in respect of such excess within ten business days after the time that the amount of such excess is finally determineddetermined but in no event later than 30 days after the Change in Control. In no event shall any Gross-Up Payment be made under this Section 9(b) later than the last day of Executive’s taxable year next following Executive’s taxable year in which Executive remits the Excise Tax. Anything in this Section 9(b) to the contrary notwithstanding, any Gross-Up Payment to be made hereunder shall be subject to such delay in payment as may apply under Section 7(g) of this Agreement (including but not limited to Section 7(g)(vi)) in the event that such payment is made in connection with Executive’s termination of employment and is subject to Section 409A of the Code. (iii) The payments Gross-Up Payment provided for in this Section 9(b) shall be made not later than at the fifteenth day following the date of Executive's termination of employmentsame time as any payments giving rise to an Excise Tax are made; provided, however, that if the amount of such payments Gross-Up Payment cannot be finally determined on or before such dayat the same time as the payments giving rise to an Excise Tax are made, the Company Bank shall pay to Executive on such day at the time the payments giving rise to an Excise Tax are made an estimate, as determined in good faith by the CompanyBank pursuant to Section 9(b)(iv) hereof, of the minimum amount of such payments Gross-Up Payment and shall pay the remainder of such payments (together with interest Gross-Up Payment at the rate time provided in Section 1274(b)(2)(B9(b)(ii) above. Executive’s right to payments under this Section 9(b) shall be treated as a right to a series of separate payments under Section 1.409A-2(b)(2)(iii) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth day after the date of Executive's termination of employment. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifteenth day after the demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code)Regulations. (iv) All determinations under this Section 9(b) shall be made by the Bank at the its expense of the Company by using a nationally recognized public accounting firm selected by Executive, and such determination shall be binding upon Executive and the CompanyBank.

Gross-up If Excise Tax Would Apply. In the event Executive becomes entitled to any amounts or benefits payable in connection with a Change in Control or other change in control (whether or not such amounts are payable pursuant to this Agreement) (the "“Severance Payments"”), if any of such Severance Payments are subject to the tax (the "“Excise Tax"”) imposed by Section 4999 of the Internal Revenue Code (or any similar federal, state or local tax that may hereafter be imposed) (the “Code”), the Company Bank shall pay to Executive at the time specified in Section 9(b)(iii) hereof an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment provided for by Section 9(b)(i), shall be equal to the Total Payments. (i) For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax: (A) any other payments or benefits received or to be received by Executive in connection with a Change in Control or Executive's ’s termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the CompanyBank, any Person whose actions result in a Change in Control or any Person affiliated with the Company Bank or such Person) (which, together with the Severance Payments, constitute 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, unless in the opinion of nationally-recognized tax counsel selected by Executive such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; (B) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (x) the total amount of the Total Payments and (y) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 9(b)(i)(A) hereof); and (C) the value of any non-cash benefits or any deferred payments or benefit shall be determined by a nationally-recognized accounting firm selected by Executive in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (ii) For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of Executive's ’s employment, Executive shall repay to the Company Bank within ten days after the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by Executive if such repayment results in a reduction in Excise Tax and/or federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of Executive's ’s employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company Bank shall make an additional gross-up payment in respect of such excess within ten days after the time that the amount of such excess is finally determined. (iii) The payments provided for in this Section 9(b) shall be made not later than the fifteenth day following the date of Executive's ’s termination of employment; provided, however, that if the amount of such payments cannot be finally determined on or before such day, the Company Bank shall pay to Executive on such day an estimate, as determined in good faith by the CompanyBank, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth day after the date of Executive's ’s termination of employment. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan be payable by the Company to Executive, payable Executive on the fifteenth day after the demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code)Bank. (iv) All determinations under this Section 9(b) shall be made at the expense of the Company Bank by a nationally recognized public accounting firm selected by Executive, and such determination shall be binding upon Executive and the CompanyBank. (v) Executive hereby agrees with the Bank and the Company and any successor thereto to in good faith consider and take steps commonly used to minimize or eliminate any tax liability or costs that would otherwise be created by the tax indemnification provisions set forth in this Section 9(b) if requested to do so by the Company or the Bank or any successor thereto; provided, however, that the foregoing language shall neither require Executive to take or not take any specific action in furtherance thereof nor contravene, limit or remove any right or privilege provided thereto under this Agreement.

Gross-up If Excise Tax Would Apply. In the event Executive becomes entitled to any amounts or benefits payable in connection with a Change in Control or other change in control (whether or not such amounts are payable pursuant to this Agreement) (the "“Severance Payments"”), if any of such Severance Payments are subject to the tax (the "“Excise Tax"”) imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the Company shall pay to Executive at the time specified in Section 9(b)(iii) hereof an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment provided for by Section 9(b)(i), shall be equal to the Total Payments. (i) For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax: (A) any other payments or benefits received or to be received by Executive in connection with a Change in Control or Executive's ’s termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute 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, unless in the opinion of nationally-recognized tax counsel selected by Executive such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; (B) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (x) the total amount of the Total Payments and (y) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 9(b)(i)(A) hereof); and (C) the value of any non-cash benefits or any deferred payments or benefit shall be determined by a nationally-recognized accounting firm selected by Executive in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (ii) For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of Executive's ’s employment, Executive shall repay to the Company within ten days after the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by Executive if such repayment results in a reduction in Excise Tax and/or federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of Executive's ’s employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess within ten days after the time that the amount of such excess is finally determined. (iii) The payments provided for in this Section 9(b) shall be made not later than the fifteenth day following the date of Executive's ’s termination of employment; provided, however, that if the amount of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth day after the date of Executive's ’s termination of employment. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifteenth day after the demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (iv) All determinations under this Section 9(b) shall be made at the expense of the Company by a nationally recognized public accounting firm selected by Executive, and such determination shall be binding upon Executive and the Company.

Gross-up If Excise Tax Would Apply. In the event Executive becomes entitled to any amounts or benefits payable in connection with a Change in Control or other change in ownership or control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance “Change in Control Payments"”), if any of such Severance Change in Control Payments are subject to the tax (the "“Excise Tax"”) imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the Company shall pay to Executive at the time specified in Section 9(b)(iii) hereof an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment payments provided for by Section 9(b)(i9(b), shall be equal to the Total Payments. (i) For purposes of determining whether any of the Severance Change in Control Payments will be subject to the Excise Tax and the amount of such Excise Tax: (A) any other payments or benefits received or to be received by Executive in connection with a Change in Control or other change in ownership or control or Executive's ’s termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (which, together with the Severance Change in Control Payments, constitute 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, unless in the opinion of nationally-recognized tax counsel selected by Executive such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; (B) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (x) the total amount of the Total Payments and (y) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 9(b)(i)(A) hereof); and (C) the value of any non-cash benefits or any deferred payments or benefit shall be determined by a nationally-recognized accounting firm selected by Executive in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (ii) For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence on in the Date of Terminationcalendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could actually be obtained from deduction of such state and local taxestaxes by Executive. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time and paid to Executive hereunder, Executive shall file for a refund of termination of Executive's employment, such excess Excise Tax. Executive shall repay to the Company the excess Excise Tax amount actually refunded to Executive by the Internal Revenue Service within ten business days after the time later of (A) the date that the Internal Revenue Service makes a final determination (within the meaning of Section 1313 of the Code) that an overpayment of such Excise Tax was made (and including a final determination of the amount thereof) and (B) the actual receipt of the refund check from the Internal Revenue Service for the amount of such reduction in overpayment of Excise Tax is finally determined the portion by Executive; provided, however, if no refund shall be due to Executive because such overpayment of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax has been applied to satisfy Executive’s other tax liabilities, Executive shall notify the Company of such application of the overpayment to Executive’s other tax liabilities and federal and state and local income shall pay to the Company within ten business days after such application of the overpayment to Executive’s other tax imposed on the Gross-Up Payment being repaid by Executive if such repayment results in a reduction in Excise Tax and/or federal and state and local income tax deduction) plus interest on liabilities the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the CodeExcise Tax that would otherwise have been refunded. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment)and paid hereunder, the Company shall make an additional grossGross-up payment Up Payment in respect of such excess within ten business days after the time that the amount of such excess is finally determineddetermined but in no event later than 30 days after the Change in Control. In no event shall any Gross-Up Payment be made under this Section 9(b) later than the last day of Executive’s taxable year next following Executive’s taxable year in which Executive remits the Excise Tax. Anything in this Section 9(b) to the contrary notwithstanding, any Gross-Up Payment to be made hereunder shall be subject to such delay in payment as may apply under Section 7(g) of this Agreement (including but not limited to Section 7(g)(vi)) in the event that such payment is made in connection with Executive’s termination of employment and is subject to Section 409A of the Code. (iii) The payments Gross-Up Payment provided for in this Section 9(b) shall be made not later than at the fifteenth day following the date of Executive's termination of employmentsame time as any payments giving rise to an Excise Tax are made; provided, however, that if the amount of such payments Gross-Up Payment cannot be finally determined on or before such dayat the same time as the payments giving rise to an Excise Tax are made, the Company shall pay to Executive on such day at the time the payments giving rise to an Excise Tax are made an estimate, as determined in good faith by the CompanyCompany pursuant to Section 9(b)(iv) hereof, of the minimum amount of such payments Gross-Up Payment and shall pay the remainder of such payments (together with interest Gross-Up Payment at the rate time provided in Section 1274(b)(2)(B9(b)(ii) above. Executive’s right to payments under this Section 9(b) shall be treated as a right to a series of separate payments under Section 1.409A-2(b)(2)(iii) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth day after the date of Executive's termination of employment. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifteenth day after the demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code)Regulations. (iv) All determinations under this Section 9(b) shall be made at the expense of by the Company by at its expense using a nationally recognized public accounting firm selected by Executive, and such determination shall be binding upon Executive and the Company.

Gross-up If Excise Tax Would Apply. In the event Executive becomes entitled to any amounts or benefits payable in connection with a Change in Control or other change in control (whether or not such amounts are payable pursuant to this Agreement) (the "“Severance Payments"”), if any of such Severance Payments are subject to the tax (the "“Excise Tax"”) imposed by Section 4999 of the Internal Revenue Code (or any similar federal, state or local tax that may hereafter be imposed) (the “Code”), the Company shall pay to Executive at the time specified in Section 9(b)(iii) hereof an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment provided for by Section 9(b)(i), shall be equal to the Total Payments. (i) For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax: (A) any other payments or benefits received or to be received by Executive in connection with a Change in Control or Executive's ’s termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute 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, unless in the opinion of nationally-recognized tax counsel selected by Executive such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; (B) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (x) the total amount of the Total Payments and (y) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 9(b)(i)(A) hereof); and (C) the value of any non-cash benefits or any deferred payments or benefit shall be determined by a nationally-recognized accounting firm selected by Executive in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (ii) For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of Executive's ’s employment, Executive shall repay to the Company within ten days after the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by Executive if such repayment results in a reduction in Excise Tax and/or federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of Executive's ’s employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess within ten days after the time that the amount of such excess is finally determined. (iii) The payments provided for in this Section 9(b) shall be made not later than the fifteenth day following the date of Executive's ’s termination of employment; provided, however, that if the amount of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth day after the date of Executive's ’s termination of employment. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifteenth day after the demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (iv) All determinations under this Section 9(b) shall be made at the expense of the Company by a nationally recognized public accounting firm selected by Executive, and such determination shall be binding upon Executive and the Company.

Gross-up If Excise Tax Would Apply. In the event Executive becomes you become entitled to any amounts or benefits payable in connection with a Change in Control or other change in ownership or control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance “Change in Control Payments"”), if any of such Severance Change in Control Payments are subject to the tax (the "“Excise Tax"”) imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the Company shall will pay to Executive you at the time specified in Section 9(b)(iii2(f)(iii) hereof an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by Executiveyou retain, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment payments provided for by this Section 9(b)(i2(f), shall be equal to the Total Payments. (i) For purposes of determining whether any of the Severance Change in Control Payments will be subject to the Excise Tax and the amount of such Excise Tax: (A) any other payments or benefits received or to be received by Executive you in connection with a Change in Control or Executive's other change in ownership or control or your termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (which, together with the Severance Change in Control Payments, constitute 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, unless in the opinion of nationally-recognized tax counsel selected by Executive you such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; (B) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (xI) the total amount of the Total Payments and (yII) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 9(b)(i)(A2(f)(i)(A) hereof); and (C) the value of any non-cash benefits or any deferred payments or benefit benefits shall be determined by a nationally-recognized accounting firm selected by Executive you in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (ii) For purposes of determining the amount of the Gross-Up Payment, Executive you shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's your residence on in the Date of Terminationcalendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could actually be obtained from deduction of such state and local taxestaxes by you. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time and paid to you hereunder, you shall file for a refund of termination of Executive's employment, Executive such excess Excise Tax. You shall repay to the Company the excess Excise Tax amount actually refunded to you by the Internal Revenue Service within ten business days after the time later of (A) the date that the Internal Revenue Service makes a final determination (within the meaning of Section 1313 of the Code) that an overpayment of such Excise Tax was made (and including a final determination of the amount thereof) and (B) the actual receipt of the refund check from the Internal Revenue Service for the amount of such reduction in overpayment of Excise Tax is finally determined the portion by you; provided, however, if no refund shall be due to you because such overpayment of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax has been applied to satisfy your other tax liabilities, you shall notify the Company of such application of the overpayment to your other tax liabilities and federal and state and local income shall pay to the Company within ten business days after such application of the overpayment to your other tax imposed on the Gross-Up Payment being repaid by Executive if such repayment results in a reduction in Excise Tax and/or federal and state and local income tax deduction) plus interest on liabilities the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the CodeExcise Tax that would otherwise have been refunded. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment)and paid hereunder, the Company shall make an additional grossGross-up payment Up Payment in respect of such excess within ten business days after the time that the amount of such excess is finally determineddetermined but in no event later than 30 days after the Change in Control. In no event shall any Gross-Up Payment be made under this Section 2(f) later than the last day of the taxable year next following the taxable year in which you remit the Excise Tax. Anything in this Section 2(f) to the contrary notwithstanding, any Gross-Up Payment to be made hereunder shall be subject to such delay in payment as may apply under Section 3(c) of this Agreement (including but not limited to Section 3(c)(vi)) in the event that such payment is made in connection with your termination of employment and is subject to Section 409A of the Code. (iii) The payments Gross-Up Payment provided for in this Section 9(b2(f) shall be made not later than at the fifteenth day following the date of Executive's termination of employmentsame time as any payments giving rise to an Excise Tax are made; provided, however, that if the amount of such payments Gross-Up Payment cannot be finally determined on or before such dayat the same time as any payments giving rise to an Excise Tax are made, the Company shall pay you at the time the payments giving rise to Executive on such day an Excise Tax are made an estimate, as determined in good faith by the CompanyCompany pursuant to Section 2(f)(iv) hereof, of the minimum amount of such payments Gross-Up Payment and shall pay the remainder of such payments (together with interest Gross-Up Payment at the rate time provided in Section 1274(b)(2)(B2(f)(ii) above. Your right to payments under this Section 2(f) shall be treated as a right to a series of separate payments under Section 1.409A-2(b)(2)(iii) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth day after the date of Executive's termination of employment. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifteenth day after the demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code)Treasury Regulations. (iv) All determinations under this Section 9(b2(f) shall be made at the expense of by the Company by at its expense using a nationally recognized public accounting firm selected by Executiveyou have selected, and such determination shall be binding upon Executive you and the Company.

Gross-up If Excise Tax Would Apply. In the event Executive becomes entitled to any amounts or benefits payable in connection with a Change in Control or other change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the Company shall pay to Executive at the time specified in Section 9(b)(iii) hereof an additional amount (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment provided for by Section 9(b)(i), shall be equal to the Total Payments. (i) For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax: (A) any other payments or benefits received or to be received by Executive in connection with a Change in Control or Executive's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute 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, unless in the opinion of nationally-recognized tax counsel selected by Executive such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; (B) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (x) the total amount of the Total Payments and (y) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 9(b)(i)(A) hereof); and (C) the value of any non-cash benefits or any deferred payments or benefit shall be determined by a nationally-recognized accounting firm selected by Executive in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (ii) For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of Executive's employment, Executive shall repay to the Company within ten days after the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by Executive if such repayment results in a reduction in Excise Tax and/or federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess within ten days after the time that the amount of such excess is finally determined. (iii) The payments provided for in this Section 9(b) shall be made not later than the fifteenth day following the date of Executive's termination of employment; provided, however, that if the amount of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth day after the date of Executive's termination of employment. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifteenth day after the demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (iv) All determinations under this Section 9(b) shall be made at the expense of the Company by a nationally recognized public accounting firm selected by Executive, and such determination shall be binding upon Executive and the Company.

Gross-up If Excise Tax Would Apply. In the event Executive becomes entitled to any amounts or benefits payable in connection with a Change in Control or other change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code (or any similar federal, state or local tax that may hereafter be imposed) (the "Code"), the Company shall pay to Executive at the time specified in Section 9(b)(iii) hereof an additional amount (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment provided for by Section 9(b)(i), shall be equal to the Total Payments. (i) For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax: (A) any other payments or benefits received or to be received by Executive in connection with a Change in Control or Executive's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute 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, unless in the opinion of nationally-recognized tax counsel selected by Executive such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; (B) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (x) the total amount of the Total Payments and (y) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 9(b)(i)(A) hereof); and (C) the value of any non-cash benefits or any deferred payments or benefit shall be determined by a nationally-recognized accounting firm selected by Executive in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (ii) For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of Executive's employment, Executive shall repay to the Company within ten days after the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by Executive if such repayment results in a reduction in Excise Tax and/or federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess within ten days after the time that the amount of such excess is finally determined. (iii) The payments provided for in this Section 9(b) shall be made not later than the fifteenth day following the date of Executive's termination of employment; providedPROVIDED, howeverHOWEVER, that if the amount of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth day after the date of Executive's termination of employment. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifteenth day after the demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (iv) All determinations under this Section 9(b) shall be made at the expense of the Company by a nationally recognized public accounting firm selected by Executive, and such determination shall be binding upon Executive and the Company.

Gross-up If Excise Tax Would Apply. In the event Executive becomes entitled to any amounts or benefits payable in connection with a Change in Control or other change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code (or any similar federal, state or local tax that may hereafter be imposed) (the "Code"), the Company Bank shall pay to Executive at the time specified in Section 9(b)(iii) hereof an additional amount (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment provided for by Section 9(b)(i), shall be equal to the Total Payments. (i) For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax: (A) any other payments or benefits received or to be received by Executive in connection with a Change in Control or Executive's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the CompanyBank, any Person whose actions result in a Change in Control or any Person affiliated with the Company Bank or such Person) (which, together with the Severance Payments, constitute 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, unless in the opinion of nationally-recognized tax counsel selected by Executive such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; (B) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (x) the total amount of the Total Payments and (y) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 9(b)(i)(A) hereof); and (C) the value of any non-cash benefits or any deferred payments or benefit shall be determined by a nationally-recognized accounting firm selected by Executive in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (ii) For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of Executive's employment, Executive shall repay to the Company Bank within ten days after the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by Executive if such repayment results in a reduction in Excise Tax and/or federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company Bank shall make an additional gross-up payment in respect of such excess within ten days after the time that the amount of such excess is finally determined. (iii) The payments provided for in this Section 9(b) shall be made not later than the fifteenth day following the date of Executive's termination of employment; provided, however, that if the amount of such payments cannot be finally determined on or before such day, the Company Bank shall pay to Executive on such day an estimate, as determined in good faith by the CompanyBank, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth day after the date of Executive's termination of employment. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan be payable by the Company to Executive, payable Executive on the fifteenth day after the demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code)Bank. (iv) All determinations under this Section 9(b) shall be made at the expense of the Company Bank by a nationally recognized public accounting firm selected by Executive, and such determination shall be binding upon Executive and the CompanyBank. (v) Executive hereby agrees with the Bank and the Company and any successor thereto to in good faith consider and take steps commonly used to minimize or eliminate any tax liability or costs that would otherwise be created by the tax indemnification provisions set forth in this Section 9(b) if requested to do so by the Company or the Bank or any successor thereto; provided, however, that the foregoing language shall neither require Executive to take or not take any specific action in furtherance thereof nor contravene, limit or remove any right or privilege provided thereto under this Agreement.

Gross-up If Excise Tax Would Apply. In the event Executive becomes entitled to any amounts or benefits payable in connection with a Change in Control or other change in control (whether or not such amounts are payable pursuant to this Agreement) (the "“Severance Payments"”), if any of such Severance Payments are subject to the tax (the "“Excise Tax"”) imposed by Section 4999 of the Internal Revenue Code (or any similar federal, state or local tax that may hereafter be imposed) (the “Code”), the Company shall pay to Executive at the time specified in Section 9(b)(iii) hereof an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment provided for by Section 9(b)(i), shall be equal to the Total Payments. (i) For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax: (A) any other payments or benefits received or to be received by Executive in connection with a Change in Control or Executive's ’s termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute 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, unless in the opinion of nationally-recognized tax counsel selected by Executive such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; (B) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (x) the total amount of the Total Payments and (y) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 9(b)(i)(A) hereof); and (C) the value of any non-cash benefits or any deferred payments or benefit shall be determined by a nationally-recognized accounting firm selected by Executive in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (ii) For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of Executive's ’s employment, Executive shall repay to the Company within ten days after the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by Executive if such repayment results in a reduction in Excise Tax and/or federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of Executive's ’s employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess within ten days after the time that the amount of such excess is finally determined. (iii) The payments provided for in this Section 9(b) shall be made not later than on the fifteenth day following the date of Executive's ’s termination of employment; provided, however, that if the amount of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as administratively practicable in compliance with Section 409A of the amount thereof can be determined Code and the Regulations thereunder but in no event later than the thirtieth day after the date of Executive's ’s termination of employmentemployment subject, however, to any delay in the payment date as a result of Section 7(g) of this Agreement (relating to the six-month delay in payment of certain benefits to Specified Employees as required by Section 409A of the Code). In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifteenth day after the demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (iv) All determinations under this Section 9(b) shall be made at the expense of the Company by a nationally recognized public accounting firm selected by Executive, and such determination shall be binding upon Executive and the Company.