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

Change in Control Best Payments Determination. Notwithstanding any other provision of this Agreement to the contrary, if payments made or benefits provided pursuant to Sections 10.2 and 10.3 of this Agreement or otherwise from the Bank, the Company or any affiliate of the Bank or the Company are considered “parachute payments” under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) (such payments hereinafter referred to as the “Total Payments”), then such payments or benefits shall be reduced to the greatest amount that may be paid to the Employee under Section 280G of the Code without causing any loss of deduction to the Company or its affiliates under such section (hereinafter referred to as the “Reduced Payments”), however, the payments or benefits shall not be reduced if the net after tax benefit to the Employee of receiving the Total Payments exceeds the net after tax benefit of receiving the Reduced Payments by at least $50,000. “Net after tax benefit” for purposes of this Agreement shall mean the sum of the present value of (i) the Total Payments or Reduced Payments (as applicable) less (ii) the amount of federal, state and local income and payroll taxes payable with respect to the foregoing calculated at the maximum marginal tax rates expected for each year in which the foregoing shall be paid to Employee (based upon the rates in effect as set forth in the Code and under state and local laws at the time of termination of Employee’s employment with the Bank), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 11 shall be made at the Bank’s expense by an accounting firm, consulting firm, or law firm experienced in such matters. Any reduction in payments required by this Section 11 shall occur in the following order: (i) any cash severance, (ii) any other cash amount payable to Employee and treated entirely as a “parachute payment”, (iii) any benefit valued entirely as a “parachute payment,” (iv) the acceleration of vesting of any equity award that is treated entirely as a “parachute payment”, (v) the acceleration of vesting of any equity awards that are time-vested options, and (vi) the acceleration of vesting of any other time-vested equity awards. Within any such category of payments and benefits, a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting shall be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant.

Change in Control Best Payments Determination. Notwithstanding any other provision of this Agreement to the contrary, if payments made or benefits provided pursuant to Sections 10.2 1 and 10.3 of this Agreement 2 or otherwise from the Bank, the Company or any affiliate of the Bank or the Company are considered “parachute payments” under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) (such payments hereinafter referred to as the “Total Payments”), then such payments or benefits shall be reduced limited to the greatest amount that may be paid to the Employee Executive under Section 280G of the Code without causing any loss of deduction to the Company or its affiliates under such section (hereinafter referred to as the “Reduced Payments”)section, howeverbut only if, the payments or benefits shall not be reduced if by reason of such reduction, the net after tax benefit to the Employee of receiving the Total Payments exceeds Executive shall exceed the net after tax benefit of receiving the Reduced Payments by at least $50,000if such reduction were not made. “Net after tax benefit” for purposes of this Agreement shall mean the sum of the present value of (i) the Total Payments total amounts payable to Executive under Sections 1 and 2, plus (ii) all other payments and benefits which the Executive receives or Reduced Payments (as applicable) then is entitled to receive from the Bank, the Company or any affiliate of the Bank or the Company that would constitute a “parachute payment” within the meaning of Section 280G of the Code, less (iiiii) the amount of federal, state and local income and payroll taxes payable with respect to the foregoing calculated at the maximum marginal tax rates expected for each year in which the foregoing shall be paid to Employee Executive (based upon the rates rate in effect for such year as set forth in the Code and under state and local laws at the time of termination of EmployeeExecutive’s employment with the Bankemployment), less (iiiiv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 11 5 shall be made at the Bank’s expense by an accounting firm, consulting firm, firm or law firm experienced in such matters. Any reduction in payments required by this Section 11 5 shall occur in the following order: (i) any cash severance, (ii) any other cash amount payable to Employee and treated entirely as a “parachute payment”Executive, (iii) any benefit valued entirely as a “parachute payment,” (iv) the acceleration of vesting of any equity award awards that is treated entirely as a “parachute payment”are options, and (v) the acceleration of vesting of any equity awards that are time-vested options, and (vi) the acceleration of vesting of any other time-vested equity awards. Within any such category of payments and benefits, a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting shall be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant.

Change in Control Best Payments Determination. Notwithstanding any other provision of this Agreement to the contrary, if payments made or benefits provided pursuant to Sections 10.2 and 10.3 of this the Agreement or otherwise from the Bank, the Company or any affiliate of the Bank or the Company are considered “parachute payments” under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) (such payments hereinafter referred to as the “Total Payments”), then such payments or benefits shall be reduced to the greatest amount that may be paid to the Employee under Section 280G of the Code without causing any loss of deduction to the Company or its affiliates under such section (hereinafter referred to as the “Reduced Payments”), however, the payments or benefits shall not be reduced if the net after tax benefit to the Employee of receiving the Total Payments exceeds the net after tax benefit of receiving the Reduced Payments by at least $50,000. “Net after tax benefit” for purposes of this Agreement shall mean the sum of the present value of (i) the Total Payments or Reduced Payments (as applicable) less (ii) the amount of federal, state and local income and payroll taxes payable with respect to the foregoing calculated at the maximum marginal tax rates expected for each year in which the foregoing shall be paid to Employee (based upon the rates in effect as set forth in the Code and under state and local laws at the time of termination of Employee’s employment with the Bank), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 11 shall be made at the Bank’s expense by an accounting firm, consulting firm, or law firm experienced in such matters. Any reduction in payments required by this Section 11 shall occur in the following order: (i) any cash severance, (ii) any other cash amount payable to Employee and treated entirely as a “parachute payment”, (iii) any benefit valued entirely as a “parachute payment,” (iv) the acceleration of vesting of any equity award that is treated entirely as a “parachute payment”, (v) the acceleration of vesting of any equity awards that are time-vested options, and (vi) the acceleration of vesting of any other time-vested equity awards. Within any such category of payments and benefits, a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting shall be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant.

Change in Control Best Payments Determination. Notwithstanding any other provision of this Agreement to the contrary, if payments made or benefits provided pursuant to Sections 10.2 and 10.3 of this Agreement Section 5 or otherwise from the Bank, the Company Corporation or any affiliate of the Bank or the Company Corporation are considered “parachute payments” under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) (such payments hereinafter referred to as the “Total Payments”), then such payments or benefits shall be reduced limited to the greatest amount that may be paid to the Employee Executive under Section 280G of the Code without causing any loss of deduction to the Company Corporation or its affiliates under such section (hereinafter referred to as the “Reduced Payments”)section, howeverbut only if, the payments or benefits shall not be reduced if by reason of such reduction, the net after tax benefit to the Employee of receiving the Total Payments exceeds Executive shall exceed the net after tax benefit of receiving the Reduced Payments by at least $50,000if such reduction were not made. “Net after tax benefit” for purposes of this Agreement shall mean the sum of the present value of (i) the Total Payments total amounts payable to Executive under Section 5, plus (ii) all other payments and benefits which the Executive receives or Reduced Payments (as applicable) then is entitled to receive from the Bank, the Corporation or any affiliate of the Bank or the Corporation that would constitute a “parachute payment” within the meaning of Section 280G of the Code, less (iiiii) the amount of federal, state and local income and payroll taxes payable with respect to the foregoing calculated at the maximum marginal tax rates expected for each year in which the foregoing shall be paid to Employee Executive (based upon the rates rate in effect for such year as set forth in the Code and under state and local laws at the time of termination of EmployeeExecutive’s employment with the Bankemployment), less (iiiiv) the amount of excise taxes imposed with respect to the payments and benefits described in (i) and (ii) above by Section 4999 of the Code. The determination as to whether and to what extent payments are required to be reduced in accordance with this Section 11 6 shall be made at the BankEmployer’s expense by an accounting firm, consulting firm, firm or law firm experienced in such matters. Any reduction in payments required by this Section 11 6 shall occur in the following order: (i) any cash severance, (ii) any other cash amount payable to Employee and treated entirely as a “parachute payment”Executive, (iii) any benefit valued entirely as a “parachute payment,” (iv) the acceleration of vesting of any equity award awards that is treated entirely as a “parachute payment”are options, and (v) the acceleration of vesting of any equity awards that are time-vested options, and (vi) the acceleration of vesting of any other time-vested equity awards. Within any such category of payments and benefits, a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are. In the event that acceleration of compensation from equity awards is to be reduced, such acceleration of vesting shall be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant.