Common use of Limitation on Parachute Payments Clause in Contracts

Limitation on Parachute Payments. In the event that the payments and other benefits provided for in this Agreement or otherwise payable to the Executive (such payments and benefits, the “280G Payments”) (a) constitute "parachute payments" within the meaning of Section 280G of the Code and (b) but for this Section 22, would be subject to the excise tax imposed by Section 4999 of the Code, then, subject to the immediately following sentence, the 280G Payments under this Agreement will be reduced to the extent such reduction would result in no portion of the 280G Payments being subject to excise tax under Section 4999 of the Code. Notwithstanding the foregoing, the reduction contemplated by this Section 22 shall be made only if the Accountants (as defined below) determine that such reduction would result in the Executive retaining a greater amount of the 280G Payments on a net after-tax basis than if no reduction were made. Any reduction in 280G Payments pursuant to this Section 22 will occur in the following order: (i) cash payments that may not be valued under Treas. Reg. § 1.280G-1, Q&A-24(c) (“24(c)”), (ii) equity-based payments that may not be valued under 24(c), (iii) cash payments that may be valued under 24(c), (iv) equity-based payments that may be valued under 24(c) and (v) other types of benefits. Within any such category of 280G Payments (that is, (i), (ii), (iii), (iv) or (v)), a reduction shall occur first with respect to amounts that are not deferred payments and then with respect to amounts that are. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of the Executive's equity awards. To the extent requested by the Executive, the Bank Group shall cooperate with the Executive in good faith in valuing, and the Accountants shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, before, on or after the date of a change in ownership or control of the Bank Group (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Code. Any determination required under this Section 22 will be made in writing by the Parent's independent public accountants engaged by the Parent for general audit purposes immediately prior to the Change of Control (the "Accountants"), whose good faith determination will be conclusive and binding upon the Executive and the Bank Group for all purposes. If the independent registered public accounting firm so engaged by the Parent is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, or if such firm otherwise cannot perform the calculations, the Parent shall appoint a nationally recognized independent registered public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code to make the determinations required hereunder and to act as the Accountants. For purposes of making the calculations required by this Section 22, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Bank Group and the Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Parent will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Limitation on Parachute Payments. In the event that the payments and Any other benefits provided for in provision of this Agreement notwithstanding, if the Excise Tax could be avoided by reducing the Total Payments by $25,000 or otherwise payable to less, then the Executive (such payments and benefits, the “280G Payments”) (a) constitute "parachute payments" within the meaning of Section 280G of the Code and (b) but for this Section 22, would be subject to the excise tax imposed by Section 4999 of the Code, then, subject to the immediately following sentence, the 280G Total Payments under this Agreement will shall be reduced to the extent such reduction would result in necessary to avoid the Excise Tax and no portion Gross-Up Payment shall be made. If the Accounting Firm determines that the Total Payments are to be reduced under the preceding sentence, then the Company shall promptly give the Executive notice to that effect and a copy of the 280G detailed calculation thereof. If none of the Total Payments being are subject to excise tax under Section 4999 section 409A of the Code. Notwithstanding the foregoing, then the reduction contemplated will occur in the manner elected by this Section 22 shall be made only the Executive prior to the date of any such payment; provided, however, that if the Accountants (as defined below) determine that such reduction would result in manner elected by the Executive retaining a greater amount of the 280G Payments on a net after-tax basis than if no reduction were made. Any reduction in 280G Payments pursuant to this Section 22 sentence could in the opinion of the Company result in any of the Total Payments becoming subject to section 409A of the Code, then the following sentence will instead apply. If any of the Total Payments is subject to section 409A of the Code, or the Executive fails to elect an order under the preceding sentence, then the reduction will occur in the following order: (i) cash payments that may not be valued under Treas. Reg. § 1.280G-1, Q&A-24(ccancellation of acceleration of vesting of any equity or equity-based awards (including options to purchase shares of the Company’s stock) for which the exercise price (“24(c)”), if any) exceeds the then-fair market value of the underlying stock or other equity; (ii) equity-based payments that may not be valued under 24(c), (iii) reduction of cash payments that may (with such reduction being applied to the payments in the reverse order in which they would otherwise be valued under 24(c), (iv) equity-based payments that may be valued under 24(c) and (v) other types of benefits. Within any such category of 280G Payments made (that is, later payments will be reduced before earlier payments); and (iii) cancellation of acceleration of vesting of equity or equity-based awards not covered under (i)) above; provided, (ii)however, (iii), (iv) or (v)), a reduction shall occur first with respect to amounts that are not deferred payments and then with respect to amounts that are. In in the event that acceleration of vesting of equity award compensation or equity-based awards is to be reducedcancelled, such acceleration of vesting will be cancelled in the reverse order of the date of grant of the Executive's equity awards. To the extent requested by the Executivesuch awards (that is, the Bank Group shall cooperate with the Executive in good faith in valuing, and the Accountants shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, before, on or after the date of a change in ownership or control of the Bank Group (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Code. Any determination required under this Section 22 later awards will be made in writing by the Parent's independent public accountants engaged by the Parent for general audit purposes immediately prior to the Change of Control (the "Accountants"canceled before earlier awards), whose good faith determination will be conclusive and binding upon the Executive and the Bank Group for all purposes. If the independent registered public accounting firm so engaged by the Parent is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, or if such firm otherwise cannot perform the calculations, the Parent shall appoint a nationally recognized independent registered public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code to make the determinations required hereunder and to act as the Accountants. For purposes of making the calculations required by this Section 22, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Bank Group and the Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Parent will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

Limitation on Parachute Payments. In To the extent the Executive is an U.S. resident taxpayer, in the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to the Executive (such payments and benefits, the “280G Payments”) (ai) constitute "“parachute payments" ” within the meaning of Section 280G of the Code and (bii) but for this Section 224, would be subject to the excise tax imposed by Section 4999 of the Code, then, subject to then the immediately following sentence, the 280G Payments under this Agreement Executive’s payments and benefits will be reduced either: (a) delivered in full, or (b) delivered as to the such lesser extent such reduction which would result in no portion of the 280G Payments such severance benefits being subject to excise tax under Section 4999 of the Code. Notwithstanding , whichever of the foregoingforegoing amounts, taking into account the reduction contemplated applicable federal, state and local income taxes and the excise tax imposed by this Section 22 shall be made only if 4999 of the Accountants (as defined below) determine that such reduction would result Code, results in the receipt by the Executive retaining a greater amount of the 280G Payments on a net an after-tax basis than if no reduction were madebasis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the Code. Any If a reduction in 280G Payments pursuant severance and other payments and benefits constituting “parachute payments” is necessary so that benefits are delivered to this Section 22 a lesser extent, reduction will occur in the following order: (i) reduction of cash payments that may not be valued under Treas. Reg. § 1.280G-1, Q&A-24(c) (“24(c)”), payments; (ii) equity-based payments that may not be valued under 24(ccancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Section 280G of the Code), (iii) cash payments that may be valued under 24(c)cancellation of accelerated vesting of equity awards, and (iv) equity-based payments that may be valued under 24(c) and (v) other types reduction of employee benefits. Within any such category of 280G Payments payments and benefits (that is, (i), (ii), (iii), (iv) or (viv)), a reduction shall occur first with respect to amounts that are not “nonqualified deferred payments compensation” (as defined under Section 409A of the Code) and then with respect to amounts that are. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of the Executive's ’s equity awards. To the extent requested by the Executive, the Bank Group shall cooperate with the Executive in good faith in valuing, and the Accountants shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, before, on or after the date of a change in ownership or control of the Bank Group (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Code. Any determination required under this Section 22 4 will be made in writing by the Parent's Company’s independent public accountants engaged by the Parent Company for general audit purposes immediately prior to the Change of in Control (the "“Accountants"”), whose good faith determination will be conclusive and binding upon the Executive and the Bank Group Company for all purposes. If the independent registered public accounting firm so engaged by the Parent Company is serving as accountant or auditor for the individual, entity or group effecting the Change of in Control, or if such firm otherwise cannot perform the calculations, the Parent Company shall appoint a nationally recognized independent registered public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code to make the determinations required hereunder and to act as the Accountantshereunder. For purposes of making the calculations required by this Section 224, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Bank Group Company and the Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Parent Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this SectionSection 4.

Limitation on Parachute Payments. In Notwithstanding anything contained in this Agreement to the event contrary, to the extent that the payments Employee becomes entitled to any payment or distribution of any type under this Section 5 ("Termination Payments") and that payment or distribution would be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), either alone or in conjunction with any other benefits provided payment or distribution of any type to or for in the Employee by the Company or any of its affiliates, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise payable (including, without limitation, any accelerated vesting of stock options or restricted stock granted by the Company pursuant to the Executive this Agreement or otherwise) (such payments and benefitscollectively, the “280G "Total Payments”") then the Termination Payments shall be reduced (abut not below zero) constitute "parachute payments" within so that the meaning of Section 280G maximum amount of the Code and Total Payments (bafter reduction) but for this Section 22, shall be one dollar ($1.00) less than the amount which would cause any portion of the Total Payments to be subject to the excise tax imposed by Section 4999 of the Code, then, subject ; provided that such reduction to the immediately following sentenceTermination Payments shall be made only if the total after-tax benefit to the Employee is greater after giving effect to such reduction than if no such reduction had been made. Unless the Employee shall have given prior written notice to the Company to effectuate a reduction in the Termination Payments if such a reduction is required, the 280G Company shall reduce or eliminate the Termination Payments under by first reducing or eliminating any cash severance benefits, then by reducing or eliminating any accelerated vesting of stock options, then by reducing or eliminating any accelerated vesting of restricted stock, then by reducing or eliminating any other remaining payments or distributions. The preceding provisions of this Agreement will be reduced subsection shall take precedence over the provisions of any other plan, arrangement or agreement governing the Employee's rights and entitlements to any benefits or compensation. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the determination of whether a reduction to the extent Termination Payments is required, it is possible that Termination Payments to the Employee which will not have been made by the Company (if a reduction to the Termination Payments is made in accordance with the preceding paragraph) should have been made ("Underpayment"). Any such Underpayment shall be promptly paid by the Company to or for the benefit of the Employee. In the event that a reduction would result to the Termination Payments is required in no accordance with the preceding paragraph and all or a portion of the 280G Total Payments being subject actually made to excise the Employee (after reduction of the Termination Payments) shall be determined to result in the imposition of any tax under Section 4999 of the Code. Notwithstanding the foregoing, the reduction contemplated by this Section 22 Employee shall be made only if promptly reimburse the Accountants (as defined below) determine that such reduction would result in Company for the Executive retaining a greater amount of the 280G excess Termination Payments together with interest on a net after-tax basis than if no reduction were made. Any reduction in 280G Payments pursuant such amount (at the same rate as is applied to this Section 22 will occur in determine the following order: (i) cash present value of payments that may not be valued under Treas. Reg. § 1.280G-1, Q&A-24(c) (“24(c)”), (ii) equity-based payments that may not be valued under 24(c), (iii) cash payments that may be valued under 24(c), (iv) equity-based payments that may be valued under 24(c) and (v) other types of benefits. Within any such category of 280G Payments (that is, (i), (ii), (iii), (iv) or (v)), a reduction shall occur first with respect to amounts that are not deferred payments and then with respect to amounts that are. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the date of grant of the Executive's equity awards. To the extent requested by the Executive, the Bank Group shall cooperate with the Executive in good faith in valuing, and the Accountants shall take into account the value of, services provided or to be provided by the Executive (including, without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, before, on or after the date of a change in ownership or control of the Bank Group (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Codeor any successor thereto), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of date the term “parachute payment” within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a) of the final regulations under Section 280G of the Code. Any determination required under this Section 22 will be made in writing reimbursable payment was received by the Parent's independent public accountants engaged by the Parent for general audit purposes immediately prior Employee to the Change of Control (date the "Accountants"), whose good faith determination will be conclusive and binding upon the Executive and the Bank Group for all purposes. If the independent registered public accounting firm so engaged by the Parent same is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, or if such firm otherwise cannot perform the calculations, the Parent shall appoint a nationally recognized independent registered public accounting firm or other professional organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code to make the determinations required hereunder and to act as the Accountants. For purposes of making the calculations required by this Section 22, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Bank Group and the Executive will furnish repaid to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Parent will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this SectionCompany."