Common use of Change in Control Best Payments Determination Clause in Contracts

Change in Control Best Payments Determination. In the event the Severance Benefits described in Section 3(a) are payable to Executive in connection with a Change in Control and, if paid, could subject Executive to an excise tax under Section 4999 of the Internal Revenue Code (the “Excise Tax”), then notwithstanding the provisions of Section 3(a) the Company shall reduce the Severance Benefits (the “Benefit Reduction”) under Section 3(a) by the amount necessary to result in the Executive not being subject to the Excise Tax, if such reduction would result in the Executive’s “Net After-Tax Amount” attributable to the Severance Benefits described in Section 3(a) being greater than it would be if no Benefit Reduction was effected. For this purpose “Net After-Tax Amount” shall mean the net amount of Severance Benefits Executive is entitled to receive under this Agreement after giving effect to all Federal, state and local taxes which would be applicable to such payments, including, but not limited to, the Excise Tax. The determination of whether any such Benefit Reduction shall be effected shall be made by a nationally recognized public accounting firm selected by the Company (the “Accounting Firm”) prior to the occurrence of the Change in Control and such determination shall be binding on both Executive and the Company. In the event it is determined that a Benefit Reduction is required, such reduction of items described in Section 3(a) above shall be done first by reducing cash severance determined in accordance with Section 3(a)(ii), 3(a)(iii) and 3(a)(iv); to the extent a further Benefit Reduction is necessary, then Severance Benefits will be reduced from the amounts determined in accordance with Section 3(a)(v) and 3(a)(vi), all as determined by the Accounting Firm.

Change in Control Best Payments Determination. In the event the Severance Benefits payments and benefits described in this Section 3(a) are 7, taken together with all other payments benefits payable to Executive in connection with a Change in Control and(together, if paidthe CIC Severance Benefits), could subject Executive to an excise tax under Section 4999 of the Internal Revenue Code (the “Excise Tax”), then notwithstanding the provisions of Section 3(a) 7 the Company shall reduce the CIC Severance Benefits (the “Benefit Reduction”) under Section 3(a) by the amount necessary to result in the Executive not being subject to the Excise Tax, Tax if such reduction would result in the Executive’s “Net After-After Tax Amount” attributable to the CIC Severance Benefits described in Section 3(a) being greater than it would be if no Benefit Reduction was effected. In the event of any over or under reduction pursuant to the previous sentence, the amount of the Benefit Reduction shall be adjusted (and any additional payments by the Company or any required repayments by Executive, as applicable, shall be promptly made) to the minimum amount necessary to result in Executive not being subject to the Excise Tax. For this purpose “Net After-After Tax Amount” shall mean the net amount of CIC Severance Benefits Executive is entitled to receive under this Agreement after giving effect to all Federalfederal, state and local taxes which would be applicable to such payments, including, but not limited to, the Excise Tax. The determination of whether any such Benefit Reduction shall be effected shall be made by a nationally recognized public accounting firm firm, selected by the Company (the “Accounting Firm”) prior and reasonably acceptable to the occurrence of the Change in Control Executive, and such determination shall be binding on both Executive and the Company. In the event it is determined that a Benefit Reduction is required, such reduction of items described in the payments to the Executive are required to be reduced pursuant to this Section 3(a) above shall be done first by reducing cash severance determined in accordance with Section 3(a)(ii7(g), 3(a)(iii) and 3(a)(iv); to the extent a further Benefit Reduction is necessary, then Severance Benefits portions of the payments that would be paid in cash under this Agreement will be reduced from the amounts determined in accordance with Section 3(a)(v) first and 3(a)(vi), all as determined by the Accounting Firmbefore any non-cash payments.

Change in Control Best Payments Determination. In Any other provision of this Agreement to the event the Severance Benefits described in Section 3(a) are payable to Executive in connection with a Change in Control andcontrary notwithstanding, if paidany portion of any payment or benefit under this Agreement either individually or in conjunction with any payment or benefit under any other plan, could agreement or arrangement (all such payments and benefits, the “Total Payments”) would constitute an “excess parachute payment” within the meaning of Internal Revenue Code Section 280G, that is subject Executive to an excise the tax under imposed by Section 4999 of the Internal Revenue such Code (the “Excise Tax”), then notwithstanding the provisions Total Payments to be made to Executive shall be reduced, but only to the extent that Executive would retain a greater amount on an after-tax basis than he would retain absent such reduction, such that the value of Section 3(a) the Company Total Payments that Executive is entitled to receive shall reduce be $1 less than the Severance Benefits (maximum amount which the “Benefit Reduction”) under Section 3(a) by the amount necessary to result in the Executive not being Employee may receive without becoming subject to the Excise Tax, if such reduction would result in the Executive’s “Net After-Tax Amount” attributable to the Severance Benefits described in Section 3(a) being greater than it would be if no Benefit Reduction was effected. For purposes of this purpose “Net AfterSection 5.7, the determination of whichever amount is greater on an after-Tax Amount” tax basis shall mean the net amount of Severance Benefits Executive is entitled to receive under this Agreement after giving effect to all Federalbe (x) based on maximum federal, state and local taxes which income and employment tax rates and the Excise Tax that would be applicable to such payments, including, but not limited to, imposed on Executive and (y) made at the Excise Tax. The determination of whether any such Benefit Reduction shall be effected shall be made Company’s expense by a nationally recognized public accounting firm independent accountants selected by the Company and Executive (which may be the “Accounting Firm”Company’s income tax return preparers if Executive so agrees) prior to the occurrence of the Change in Control and such which determination shall be binding on both Executive and the Company. In the event it is determined that a Benefit Reduction is required, Any such reduction of items described in as may apply under this Section 3(a) above 5 7 shall be done first by reducing applied in the following order: (i) payments that are payable in cash severance determined in accordance with the full amount of which are treated as parachute payments under Treasury Regulation Section 3(a)(ii)1.280G-1, 3(a)(iiiQ&A 24(a) and 3(a)(iv); to the extent a further Benefit Reduction is necessary, then Severance Benefits will be reduced from the amounts determined in accordance with Section 3(a)(v) and 3(a)(vi(if necessary, to zero), with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any equity the full amount of which are treated as parachute payments under Treasury Regulation Section 1.280G-1, Q&A 24(a), with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24) will next be reduced; (iii) payments that are payable in cash that are valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with amounts that are payable last reduced first, will next be reduced; (iv) payments and benefits due in respect of any equity valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24) will next be reduced; and (v) all as determined by the Accounting Firmother non-cash benefits not otherwise described in clauses (ii) or (iv) will next be reduced pro-rata.

Change in Control Best Payments Determination. In the event that the Severance Benefits severance payments and benefits described in Section 3(a3.a. of this Agreement (the “Severance Benefits”) and in any other plan, arrangement or agreement with the Company or any affiliated company (together with the Severance Benefits, the “Total Benefits”) are payable to Executive in connection with a Change in Control and, if paid, could subject Executive to an excise tax under Section 4999 of the Internal Revenue Code (the “Excise Tax”), then notwithstanding any other provision of the provisions of Section 3(a) Agreement, the Company shall reduce the Severance Benefits (the “Benefit Reduction”) under Section 3(a) this Agreement by the amount necessary to result in the Executive not being subject to the Excise Tax, if such reduction would result in the Executive’s “Net After-Tax Amount” attributable to the Severance Total Benefits described in Section 3(a) being greater than it would be if no Benefit Reduction was effected. For this purpose “Net After-Tax Amount” shall mean the net amount of Severance Total Benefits that Executive is entitled to receive under this Agreement and any other plan, arrangement or agreement with the Company or any affiliated company after giving effect to all Federal, state and local taxes which would be applicable to such payments, including, but not limited to, the Excise Tax. The determination of whether any such Benefit Reduction shall be effected shall be made by a nationally recognized public accounting firm selected by the Company (the “Accounting Firm”) prior to the occurrence of the Change in Control and such determination shall be binding on both Executive and the Company. In the event it is determined that a Benefit Reduction is required, such reduction of items described in Section 3(a) 3.a. above shall be done first by reducing cash severance determined in accordance with Section 3(a)(ii)3.a.ii., 3(a)(iii) 3.a.iii. and 3(a)(iv)3.a.iv.; to the extent a further Benefit Reduction is necessary, then Severance Benefits will be reduced from the amounts determined in accordance with Section 3(a)(v) 3.a.v. and 3(a)(vi)0.x.xx., all as determined by the Accounting Firm.

Change in Control Best Payments Determination. In the event the Severance Benefits described in Section 3(a) are payable to Executive in connection with a Change in Control and, if paid, could subject Executive to an excise tax under Section 4999 of the Internal Revenue Code (the “Excise Tax”), then notwithstanding the provisions of Section 3(a) the Company shall reduce the Severance Benefits (the “Benefit Reduction”) under Section 3(a) by the amount necessary to result in the Executive not being subject to the Excise Tax, Tax if such reduction would result in the Executive’s “Net After-Tax Amount” attributable to the Severance Benefits described in Section 3(a) being greater than it would be if no Benefit Reduction was effected. For this purpose “Net After-Tax Amount” shall mean the net amount of Severance Benefits Executive is entitled to receive under this Agreement after giving effect to all Federal, state and local taxes which would be applicable to such payments, including, but not limited to, the Excise Tax. The determination of whether any such Benefit Reduction shall be effected shall be made by a nationally recognized public accounting firm selected by the Company (the “Accounting Firm”) prior to the occurrence of the Change in Control and such determination shall be binding on both Executive and the Company. In the event it is determined that a Benefit Reduction is required, such reduction of items described in Section 3(a) above shall be done first by reducing cash severance determined in accordance with Section 3(a)(ii), 3(a)(iii) and 3(a)(iv); to the extent a further Benefit Reduction is necessary, then Severance Benefits will be reduced from the amounts determined in accordance with Section 3(a)(v) and 3(a)(vi), all as determined by the Accounting Firm.

Change in Control Best Payments Determination. In the event the Severance Benefits as described in Section 3(a3(b) of this Agreement which are payable paid to Executive in connection with a Change in Control and(i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code, if paidand (ii) but for this Section 7, could would be subject Executive to an the excise tax under imposed by Section 4999 of the Internal Revenue Code (the “Excise Tax”), then notwithstanding the provisions of Section 3(a) 3(b), the Company shall reduce the Severance Benefits (the “Benefit Reduction”) under Section 3(a) due Executive by the amount necessary to result in the Executive not being subject to the Excise Tax, Tax if such reduction would result in the Executive’s “Net After-Tax Amount” attributable to the Severance Benefits described in Section 3(a3(b) being greater than it would be if no Benefit Reduction was effected. For this purpose “Net After-Tax Amount” shall mean the net amount of Severance Benefits Executive is entitled to receive under this Agreement after giving effect to all Federal, state and local taxes which would be applicable to such payments, including, but not limited to, the Excise Tax. The determination of whether any such Benefit Reduction shall be effected shall be made by a nationally recognized public accounting firm, law firm selected or other qualified consultant mutually agreeable to by the Executive, the Bank and the Company (the “Accounting FirmIndependent Advisor”) prior to the occurrence of the Change in Control and such determination shall be binding on both the Executive, Bank and Company. The determination made as to the Benefit Reduction required hereunder by the Independent Advisor shall be binding on the parties. The Executive shall have the right to designate within a reasonable period which Severance Benefits scheduled under this Agreement will be reduced; provided, however, that if no direction is received from the Executive, Bank and Company shall implement the Benefit Reduction under this Agreement in its sole discretion. In connection with making determinations under this Section 7, the Independent Advisor shall take into account the value of any reasonable compensation for services to be rendered by the Executive before or after the Change of Control, including any non-competition provisions that may apply to the Executive and the CompanyBank and the Company shall cooperate in the valuation of any such services, including any non-competition provisions. In addition, the event it is determined that a Benefit Reduction is required, such reduction Bank or the Company shall pay all of items described in Section 3(a) above shall be done first by reducing cash severance determined in accordance with Section 3(a)(ii), 3(a)(iii) and 3(a)(iv); to the extent a further Benefit Reduction is necessary, then Severance Benefits will be reduced from fees of the amounts determined in accordance with Section 3(a)(v) and 3(a)(vi), all as determined Independent Advisor for services performed by the Accounting FirmIndependent Advisor as contemplated in this Section 7.

Change in Control Best Payments Determination. In the event that the severance payments and benefits described in this Agreement (the “Severance Benefits” ) and in any other plan, arrangement or agreement with the Company or any affiliated company (together with the Severance Benefits described in Section 3(aBenefits, the “Total Benefits”) are payable to Executive in connection with a Change in Control and, if paid, could subject Executive to an excise tax under Section 4999 of the Internal Revenue Code (the “Excise Tax”), then notwithstanding the provisions any other provision of Section 3(a) this Agreement, the Company shall reduce the Severance Benefits (the “Benefit Reduction”) under Section 3(a) this Agreement by the amount necessary to result in the Executive not being subject to the Excise Tax, if such reduction would result in the Executive’s “Net After-Tax Amount” attributable to the Severance Total Benefits described in Section 3(a) being greater than it would be if no Benefit Reduction was effected. For this purpose “Net After-Tax Amount” shall mean the net amount of Severance Total Benefits that Executive is entitled to receive under this Agreement and any other plan, arrangement or agreement with the Company or any affiliated company after giving effect to all Federal, state and local taxes which would be applicable to such payments, including, but not limited to, the Excise Tax. The determination of whether any such Benefit Reduction shall be effected shall be made by a nationally recognized public accounting firm selected by the Company (the “Accounting Firm”) prior to the occurrence of the Change in Control and such determination shall be binding on both Executive and the Company. In the event it is determined that a Benefit Reduction is required, such reduction of items described in Section 3(a) 10 above shall be done first by reducing reducing: in the event of a Termination Without Cause or Constructive Termination Without Cause prior to a Change in Control, cash severance determined in accordance with Section 3(a)(ii), 3(a)(iii10(c)(ii),10(c)(iii) and 3(a)(iv); 10(c)(iv) and to the extent a further Benefit Reduction is necessary, then Severance Benefits will be reduced from the amounts determined in accordance with Section 3(a)(v10(c)(v) and 3(a)(vi10(c)(vi); in the event of a Termination Without Cause or Constructive Termination Without Cause following a Change in Control, cash severance determined in accordance with Section 10(e)(ii), 10(e)(iii) and 10(e)(iv) and to the extent a further Benefit Reduction is necessary, then Severance Benefits will be reduced from the amounts determined in accordance with Section 10(e)(v) and 10(e)(vi); and in the event of a Termination upon Executive’s Approved Early Retirement or Normal Retirement, cash severance determined in accordance with Section 10(f)(ii), 10(f)(iii) and 10(f)(iv) and to the extent a further Benefit Reduction is necessary, then Severance Benefits will be reduced from the amounts determined in accordance with Section 10(f)(v); all as determined by the Accounting Firm.”

Change in Control Best Payments Determination. In the event the Severance Benefits described in Section 3(a) are payable to Executive in connection with a Change in Control and, if paid, could subject Executive to an excise tax under Section 4999 of the Internal Revenue Code (the “"Excise Tax”"), then notwithstanding the provisions of Section 3(a) the Company shall reduce the Severance Benefits (the “"Benefit Reduction”") under Section 3(a) by the amount necessary to result in the Executive not being subject to the Excise Tax, Tax if such reduction would result in the Executive’s “'s "Net After-Tax Amount” " attributable to the Severance Benefits described in Section 3(a) being greater than it would be if no Benefit Reduction was effected. For this purpose “"Net After-Tax Amount” " shall mean the net amount of Severance Benefits Executive is entitled to receive under this Agreement after giving effect to all Federal, state and local taxes which would be applicable to such payments, including, but not limited to, the Excise Tax. The determination of whether any such Benefit Reduction shall be effected shall be made by a nationally recognized public accounting firm selected by the Company (the “"Accounting Firm”") prior to the occurrence of the Change in Control and such determination shall be binding on both Executive and the Company. In the event it is determined that a Benefit Reduction is required, such reduction of items described in Section 3(a) above shall be done first by reducing cash severance determined in accordance with Section 3(a)(ii), 3(a)(iii) and 3(a)(iv); to the extent a further Benefit Reduction is necessary, then Severance Benefits will be reduced from the amounts determined in accordance with Section 3(a)(v) and 3(a)(vi), all as determined by the Accounting Firm.

Change in Control Best Payments Determination. In the event the Severance Benefits described in Section 3(a) are payable to Executive in connection with a Change in Control and, if paid, could subject Executive to an excise tax under Section 4999 of the Internal Revenue Code (the “"Excise Tax”"), then notwithstanding the provisions of Section 3(a) the Company shall reduce the Severance Benefits (the “"Benefit Reduction”") under Section 3(a) by the amount necessary to result in the Executive not being subject to the Excise Tax, if such reduction would result in the Executive’s “'s "Net After-Tax Amount” " attributable to the Severance Benefits described in Section 3(a) being greater than it would be if no Benefit Reduction was effected. For this purpose “"Net After-Tax Amount” " shall mean the net amount of Severance Benefits Executive is entitled to receive under this Agreement after giving effect to all Federal, state and local taxes which would be applicable to such payments, including, but not limited to, the Excise Tax. The determination of whether any such Benefit Reduction shall be effected shall be made by a nationally recognized public accounting firm selected by the Company (the “"Accounting Firm”Firm ") prior to the occurrence of the Change in Control and such determination shall be binding on both Executive and the Company. In the event it is determined that a Benefit Reduction is required, such reduction of items described in Section 3(a) above shall be done first by reducing cash severance determined in accordance with Section 3(a)(ii), 3(a)(iii) and 3(a)(iv); to the extent a further Benefit Reduction is necessary, then Severance Benefits will be reduced from the amounts determined in accordance with Section 3(a)(v) and 3(a)(vi), all as determined by the Accounting Firm.