Common use of Limitations on Payments Clause in Contracts

Limitations on Payments. Notwithstanding any other provision of this Agreement, if any portion of any payment under this Agreement, or under any other agreement with or plan of the Company or its affiliates (in the aggregate "Total Payments"), would constitute an "excess parachute payment," then the Total Payments to be made to the Employee shall be reduced such that the value of the aggregate Total Payments that the Employee is entitled to receive shall be One Dollar ($1) less than the maximum amount which the Employee may receive without becoming subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or which the Company may pay without loss of deduction under Section 280G(a) of the Code. For purposes of this Agreement, the terms "excess parachute payment" and "parachute payments" shall have the meaning assigned to them in Section 280G of the Code, and such "parachute payments" shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) of the Code. Within fifteen (15) days following the Date of Termination or notice by the Company to the Employee of its belief that there is a payment or benefit due the Employee which will result in an excess parachute payment as defined in Section 280G of the Code, the Employee and the Company, at the Company's expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel selected by the Company's independent auditors and acceptable to the Employee in his sole discretion (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income, (ii) the amount and present value of Total Payments and (iii) the amount and present value of any excess parachute payments determined without regard to the limitations of this paragraph. As used in this Agreement, the term "Base Period Income" means an amount equal to the Employee's "annualized includible compensation for the base period" as defined in Section 280G(d)(1) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of Sections 280(G)(d)(3) and (4) of the Code, which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Employee. If such opinion determines that there would be an excess parachute payment, any payment or benefit determined by such counsel to be includible in Total Payments shall be reduced or eliminated as specified by the Employee in writing delivered to the Company within five (5) days of his receipt of such opinion or, if the Employee fails to so notify the 5 Company, then as the Company shall reasonably determine, so that under the bases of calculations set forth in such opinion there will be excess parachute payment. If such legal counsel so requests in connection with the opinion required by this paragraph, the Employee and the Company shall obtain at the Company's expense, and the legal counsel may rely on in providing the opinion, the advice of a firm of recognized executive compensation to be received by the Employee. If the provisions of Sections 280G and 4999 of the Code are repealed without succession, then this paragraph shall be of no further force or effect.

Limitations on Payments. Notwithstanding any other provision of this Agreement, if any portion of any payment under this Agreement, or under any other agreement with or plan of the Company or its affiliates (in the aggregate "Total Payments"), would constitute an "excess parachute payment," then the Total Payments to be made to the Employee shall be reduced such that the value of the aggregate Total Payments that the Employee is entitled to receive shall be One Dollar ($1) less than the maximum amount which the Employee may receive without becoming subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or which the Company may pay without loss of deduction under Section 280G(a) of the Code. For purposes of this Agreement, the terms "excess parachute payment" and "parachute payments" shall have the meaning assigned to them in Section 280G of the Code, and such "parachute payments" shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(21274(b) (2) of the Code. Within fifteen (15) days following the Date of Termination or notice by the Company to the Employee of its belief that there is a payment or benefit due the Employee which will result in an excess parachute payment as defined in Section 280G of the Code, the Employee and the Company, at the Company's expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel selected by the Company's independent auditors and acceptable to the Employee in his sole discretion (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income, (ii) the amount and present value of Total Payments and (iii) the amount and present value of any excess parachute payments determined without regard to the limitations of this paragraph. As used in this Agreement, the term "Base Period Income" means an amount equal to the Employee's "annualized includible compensation for the base period" as defined in Section 280G(d)(1) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of Sections 280(G)(d)(3) and (4) of the Code, which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Employee. If such opinion determines that there would be an excess parachute payment, any payment or benefit determined by such counsel to be includible in Total Payments shall be reduced or eliminated as specified by the Employee in writing delivered to the Company within five (5) days of his receipt of such opinion or, if the Employee fails to so notify the 5 Company, then as the Company shall reasonably determine, so that under the bases of calculations set forth in such opinion there will be excess parachute payment. If such legal counsel so requests in connection with the opinion required by this paragraph, the Employee and the Company shall obtain at the Company's expense, and the legal counsel may rely on in providing the opinion, the advice of a firm of recognized executive compensation to be received by the Employee. If the provisions of Sections 280G and 4999 of the Code are repealed without succession, then this paragraph shall be of no further force or effect.and

Limitations on Payments. Notwithstanding (i) If it is determined that any other provision payment, benefit or distribution provided for in this Agreement or otherwise (for the purposes of this AgreementSection 6(b), if any portion of any payment under this Agreementeach, a “Payment” and collectively, the “Payments”) from the Company to or under any other agreement with or plan for the benefit of the Company or its affiliates Executive (in x) constitutes a “parachute payment” within the aggregate "Total Payments"meaning of Section 280G of the Code and (y) but for this subsection (b), would constitute an "excess parachute payment," then the Total Payments to be made to the Employee shall be reduced such that the value of the aggregate Total Payments that the Employee is entitled to receive shall be One Dollar ($1) less than the maximum amount which the Employee may receive without becoming subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"“Excise Tax”), such Payments shall be either: (A) delivered in full, or which (B) delivered to such lesser extent that would result in no portion of the Company Payments being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Executive on an after-tax basis, of the greatest amount of Payments, notwithstanding that all or some portion of the Payments may pay without loss of deduction be taxable under Section 280G(a) 4999 of the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 6(b)(i) shall be made in writing in good faith by an independent accounting firm selected by the Company, whose determinations shall be binding upon the Company and the Executive (the “Accountants”), in good faith consultation with the Executive. (ii) In the event a reduction in the Payments is required hereunder, the Company shall promptly give the Executive notice to that effect and the Executive may then determine, in the Executive’s sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as, after such election, none of the Payments are subject to the Excise Tax), and shall advise the Company in writing of the Executive’s election within ten (10) days of the Executive’s receipt of the Company’s notice. If no such election is made by the Executive within such period, the Company may determine which and how much of the Payments shall be eliminated or reduced (as long as, after such determination, none of the Payments are subject to the Excise Tax) and shall notify the Executive promptly of such determination. (iii) For purposes of making the determinations and calculations required by this AgreementSection 6(b), the terms "excess parachute payment" and "parachute payments" Accountants: (A) shall have take into account the value of any reasonable compensation for services to be rendered by the Executive before or after the Change in Control within the meaning assigned to them in of Section 280G 280G(b)(2) of the CodeCode and the regulations thereunder, including without limitation, the Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, whether set forth in this Agreement or otherwise (a “Noncompete Covenant”), and the Company shall cooperate in good faith in connection with any such "parachute payments" shall be valued as provided thereinvaluations and reasonable compensation positions. Present value Without limiting the generality of the foregoing, for purposes of this provision, the Company agrees to allocate as consideration for any Noncompete Covenant the maximum amount of compensation and benefits payable under this Agreement shall be calculated in accordance with reasonably allocable thereto so as to avoid, to the extent possible, subjecting any Payments to tax under Section 1274(b)(2) 4999 of the Code. Within fifteen (15) days following the Date of Termination or notice by the Company to the Employee of its belief that there is a payment or benefit due the Employee which will result in an excess parachute payment as defined in Section 280G of the Code, the Employee and the Company, at the Company's expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel selected by the Company's independent auditors and acceptable to the Employee in his sole discretion (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income, (ii) the amount and present value of Total Payments ; and (iiiB) may make reasonable assumptions and approximations concerning the amount application of taxes and present value of any excess parachute payments determined without regard to the limitations of this paragraph. As used in this Agreement, the term "Base Period Income" means an amount equal to the Employee's "annualized includible compensation for the base period" as defined in Section 280G(d)(1) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of Sections 280(G)(d)(3) and (4) of the Code, which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Employee. If such opinion determines that there would be an excess parachute payment, any payment or benefit determined by such counsel to be includible in Total Payments shall be reduced or eliminated as specified by the Employee in writing delivered to the Company within five (5) days of his receipt of such opinion or, if the Employee fails to so notify the 5 Company, then as the Company shall reasonably determine, so that under the bases of calculations set forth in such opinion there will be excess parachute payment. If such legal counsel so requests in connection with the opinion required by this paragraph, the Employee and the Company shall obtain at the Company's expense, and the legal counsel may rely on in providing reasonable good faith interpretations concerning the opinion, the advice of a firm of recognized executive compensation to be received by the Employee. If the provisions application of Sections 280G and 4999 of the Code Code. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 6(b). The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 6(b). (iv) If the Payments are repealed without successionreduced to avoid the Excise Tax pursuant to Section 6(b)(i) hereof and notwithstanding such reduction, the IRS determines that the Executive is liable for the Excise Tax as a result of the receipt of Payments from the Company, then this paragraph the Executive shall be of no further force or effect.obligated to pay to the Company (the 7

Limitations on Payments. Notwithstanding (a) In the event that it shall be determined that any other provision of this Agreement, if any portion payment or distribution to or for the benefit of any payment Participant under this Agreement, Plan or under any other Company plan, contract or agreement with or plan would, but for the effect of the Company or its affiliates (in the aggregate "Total Payments")this Section, would constitute an "excess parachute payment," then the Total Payments to be made to the Employee shall be reduced such that the value of the aggregate Total Payments that the Employee is entitled to receive shall be One Dollar ($1) less than the maximum amount which the Employee may receive without becoming subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any interest or penalties with respect to such excise tax (collectively, such excise tax, together with any such interest or penalties, the “Excise Tax”), then, in the event that the after-tax value of 1986, as amended all Payments to a Participant (such after-tax value to reflect the "Code") or which the Company may pay without loss of deduction under Section 280G(a) of the Code. For purposes of this AgreementExcise Tax and all income or other taxes on such Payments) would, in the terms "excess parachute payment" and "parachute payments" shall have aggregate, be less than the meaning assigned after-tax value to them in Section 280G the Participant of the CodeSafe Harbor Amount, (a) the cash portions of the Payments payable to the Participant under this Plan shall be reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Participant, in the aggregate, equals the Safe Harbor Amount, and such "parachute payments" (b) if the reduction of the cash portions of the Payments, payable under this Plan, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then any cash portions of the Payments payable to the Participant under any other plans shall be valued as provided therein. Present value for purposes reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments paid to the Participant, in the aggregate, equals the Safe Harbor Amount, and (c) if the reduction of all cash portions of the Payments, payable pursuant to this Agreement Plan and otherwise, to zero would not be sufficient to reduce the Parachute Value of all Payments to the Safe Harbor Amount, then non-cash portions of the Payments shall be calculated reduced, in accordance with Section 1274(b)(2) the order in which they are due to be paid, until the Parachute Value of the Code. Within fifteen (15) days following the Date of Termination or notice by the Company all Payments paid to the Employee of its belief that there is a payment or benefit due Participant, in the Employee which will result in an excess parachute payment as defined in Section 280G of aggregate, equals the Code, the Employee and the Company, at the Company's expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel selected by the Company's independent auditors and acceptable to the Employee in his sole discretion (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income, (ii) the amount and present value of Total Payments and (iii) the amount and present value of any excess parachute payments determined without regard to the limitations of Safe Harbor Amount. All calculations under this paragraph. As used in this Agreement, the term "Base Period Income" means an amount equal to the Employee's "annualized includible compensation for the base period" as defined in Section 280G(d)(1) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit section shall be determined by the Company's independent auditors in accordance with the principles of Sections 280(G)(d)(3) and (4) of the Code, which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Employee. If such opinion determines that there would be an excess parachute payment, any payment or benefit determined by such counsel to be includible in Total Payments shall be reduced or eliminated as specified by the Employee in writing delivered to the Company within five (5) days of his receipt of such opinion or, if the Employee fails to so notify the 5 Company, then as the Company shall reasonably determine, so that under the bases of calculations set forth in such opinion there will be excess parachute payment. If such legal counsel so requests in connection with the opinion required by this paragraph, the Employee and the Company shall obtain at the Company's expense, and the legal counsel may rely on in providing the opinion, the advice of a firm of recognized executive compensation to be received by the Employee. If the provisions of Sections 280G and 4999 of the Code are repealed without succession, then this paragraph shall be of no further force or effect’s outside auditors.

Limitations on Payments. Notwithstanding any other provision of this Agreement, if any portion of any payment under this Agreement, or under any other agreement with or plan of the Company or its affiliates (in the aggregate "Total Payments"), would constitute an "excess parachute payment," then the Total Payments to be made to the Employee Executive shall be reduced such that the value of the aggregate Total Payments that the Employee Executive is entitled to receive shall be One Dollar ($1) less than the maximum amount which the Employee Executive may receive without becoming subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or which the Company may pay without loss of deduction under Section 280G(a) of the Code. For purposes of this Agreement, the terms "excess parachute payment" and "parachute payments" shall have the meaning assigned to them in Section 280G of the Code, and such "parachute payments" shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(21274(b) (2) of the Code. Within fifteen (15) days following the Date of Termination or notice by the Company to the Employee Executive of its belief that there is a payment or benefit due the Employee Executive which will result in an excess parachute payment as defined in Section 280G of the Code, the Employee Executive and the Company, at the Company's expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel selected by the Company's independent auditors and acceptable to the Employee Executive in his sole discretion (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income, (ii) the amount and present value of Total Payments and (iii) the amount and present value of any excess parachute payments determined without regard to the limitations of this paragraph. As used in this Agreement, the term "Base Period Income" means an amount equal to the EmployeeExecutive's "annualized includible compensation for the base period" as defined in Section 280G(d)(1280G(d) (1) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of Sections 280(G)(d)(328OG(d) (3) and (4) of the Code, which determination shall be evidenced in a certificate of such auditors addressed to the Company and the EmployeeExecutive. If such opinion determines that there would be an excess parachute payment, any payment or benefit determined by such counsel to be includible in Total Payments shall be reduced or eliminated as specified by the Employee Executive in writing delivered to the Company within five (5) days of his receipt of such opinion or, if the Employee Executive fails to so notify the 5 Company, then as the Company shall reasonably determine, so that under the bases of calculations set forth in such opinion there will be excess parachute payment. If such legal counsel so requests in connection with the opinion required by this paragraph, the Employee Executive and the Company shall obtain at the Company's expense, and the legal counsel may rely on in providing the opinion, the advice of a firm of recognized executive compensation to be received by the EmployeeExecutive. If the provisions of Sections 280G 28OG and 4999 of the Code are repealed without succession, then this paragraph shall be of no further force or effect.

Limitations on Payments. Notwithstanding (a) Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined as set forth herein that any other provision payment or distribution by the Corporation or the Bank to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, if any portion of any payment under this Agreement, Agreement or under any other agreement with or plan of the Company or its affiliates otherwise (in the aggregate "Total Payments"a “Payment”), would constitute an "“excess parachute payment," then ” within the Total Payments to be made to the Employee shall be reduced such that the value meaning of Section 280G of the aggregate Total Payments Code, and that it would be economically advantageous to Executive to reduce the Employee is entitled Payment to receive shall be One Dollar ($1) less than avoid or reduce the maximum amount which the Employee may receive without becoming subject to the tax imposed by taxation of excess parachute payments under Section 4999 of the Internal Revenue Code Code, the aggregate present value of 1986, amounts payable or distributable to or for the benefit of Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as amended “Agreement Payments”) shall be reduced (but not below zero) to the "Code") or Reduced Amount. The “Reduced Amount” shall be an amount expressed in present value which maximizes the Company may pay aggregate present value of Agreement Payments without loss of deduction causing any Payment to be subject to the taxation under Section 280G(a) 4999 of the Code. For purposes of this AgreementSection 17, the terms "excess parachute payment" and "parachute payments" shall have the meaning assigned to them in Section 280G of the Code, and such "parachute payments" present value shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated determined in accordance with Section 1274(b)(2280G(d)(4) of the Code. Within fifteen (15b) days following the Date of Termination or notice All determinations to be made under this Section 17 shall be made, in writing, by the Company Corporation’s independent certified public accountant immediately prior to the Employee Change of its belief that there is a payment or benefit due Control (the Employee which will result in an excess parachute payment as defined in Section 280G of the Code, the Employee and the Company, at the Company's expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel selected by the Company's independent auditors and acceptable to the Employee in his sole discretion (which may be regular outside counsel to the Company“Accounting Firm”), which opinion sets forth (i) firm shall provide its determinations and any supporting calculations in writing to both the amount Corporation and you within 10 days of the Base Period Income, (ii) date of termination. Any such determination by the amount Accounting Firm shall be binding upon the Corporation and present value you. You shall in your sole discretion determine which and how much of Total the Agreement Payments and (iii) shall be eliminated or reduced consistent with the amount and present value of any excess parachute payments determined without regard to the limitations requirements of this paragraph. As used in this Agreement, the term "Base Period Income" means an amount equal to the Employee's "annualized includible compensation for the base period" as defined in Section 280G(d)(1) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of Sections 280(G)(d)(3) and (4) of the Code17, which determination shall be evidenced in a certificate made by delivery of such auditors addressed written notice to the Company and Corporation within 10 days of your receipt of the Employeedetermination of the Accounting Firm. If such opinion determines that there would be an excess parachute payment, any payment or benefit determined by such counsel to be includible in Total Payments shall be reduced or eliminated as specified by the Employee in writing delivered to the Company within Within five (5) days after your timely determination, the Corporation shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of his you, such amounts as are then due to you under this Agreement. In the event you do not make such timely determination then within 15 days after Corporation’s receipt of such opinion or, if the Employee fails to so notify determination of the 5 Company, then as the Company shall reasonably determine, so that under the bases of calculations set forth in such opinion there will be excess parachute payment. If such legal counsel so requests in connection with the opinion required by this paragraphAccounting Firm, the Employee and the Company shall obtain at the Company's expenseCorporation, and the legal counsel in its sole discretion, may rely on in providing the opinion, the advice of a firm of recognized executive compensation pay (or cause to be received by paid) or distribute (or cause to be distributed) to or for the Employee. If the provisions benefit of Sections 280G and 4999 you such portion of the Code are repealed without successionAgreement Payments as it may deem appropriate, then this paragraph shall be of but no further force or effectless than the Reduced Amount.