Internal Revenue Code Section 280G. If any of the payments or benefits received or to be received by you, including, without limitation, any payment or benefits received in connection with your termination of employment, whether pursuant to the terms of this Agreement or any other plan, arrangement, agreement, undertaking, or otherwise ("280G Payments") constitute "parachute payments" within the meaning of Section 280G of the Internal Revenue Code ("Code") and would, but for this Section, be subject to the excise tax imposed under Section 4999 of the Code ("Excise Tax"), then such 280G Payments shall be reduced in a manner determined by the Company that is consistent with the requirements of Section 409A until no amount payable to you will be subject to the Excise Tax. If two economically equivalent amounts are subject to reduction but are payable at different times, the amounts shall be reduced on a pro rata basis.
Internal Revenue Code Section 280G. (i) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Bank to or for the benefit of the Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (a “Payment” would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, prior to the making of any Payment to the Employee, a calculation shall be made comparing (i) the net benefit to the Employee of the Payment after payment of the Excise Tax, to (ii) the net benefit to the Employee if the Payment had been limited to the extent necessary to avoid being subject to the Excise Tax. If the amount calculated under (i) above is less than the amount calculated under (ii) above, then the Payment shall be limited to the extent necessary to avoid being subject to the Excise Tax (the “Reduced Amount”). In that event, the Employee shall direct which Payments are to be modified or reduced.
(ii) Unless otherwise agreed upon by the Bank and the Employee, all determinations required to be made under this Section 6(e), including the assumptions to be used in arriving at such determination, shall be made by an independent accounting firm mutually acceptable to the Bank and the Employee (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Bank and the Employee within 15 business days of the receipt of notice from the Employee that there has been a Payment, or such earlier time as is requested by the Bank. All fees and expenses of the Accounting Firm shall be borne solely by the Bank. Any determination by the Accounting Firm shall be binding upon the Bank and the Employee
Internal Revenue Code Section 280G. Notwithstanding anything to the contrary in this Agreement, if any payment of compensation to or for the benefit of the Executive, whether or not made under the terms of this Agreement, either alone or together with other payments and benefits which the Executive has received or has a right to receive, would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986 (the “Code”), such payments and/or benefits shall be reduced by the amount, if any, which is the minimum necessary to result in no portion of such payments or benefits being subject to the excise tax imposed under Section 4999 of the Code. The amount of any required reduction shall be determined and applied in a manner calculated to maximize the after-tax value of the remaining payments and benefits. All calculations required to be made in order to determine whether payments would be subject to the excise tax imposed under Section 4999 of the Code, including the assumptions to be utilized in arriving at such determination, the and amount and application of any required reduction shall be made by independent counsel retained by the Association for this purpose prior to the event or the closing of the transaction which results in the application of Section 4999 of the Code or such other independent counsel or independent firm of certified public accountants as the Association may designate with the consent of the Executive (which consent may be given or withheld in the Executive’s sole and absolute discretion) (the “Tax Advisor”), which shall provide detailed supporting calculations both to the Association and the Executive within fifteen (15) business days of the receipt of demand from the Executive, or such earlier time as is requested by the Association. All fees and expenses of the Tax Advisor shall be borne solely by the Association. Any determination by the Tax Advisor shall be binding upon the Association and the Executive and all other interested parties in the absence of manifest error.
Internal Revenue Code Section 280G. If all or any portion of the amounts payable to the Executive pursuant to this Agreement alone or together with other payments which the Executive has the right to receive from the Bank, constitute "excess parachute payments" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), that are subject to the excise tax imposed by Section 4999 of the Code (or similar tax and/or assessment), such amounts payable hereunder shall be reduced to the extent necessary, after first applying any similar reduction in payments to be received from any other plan or program sponsored by the Bank from which the Executive has a right to receive payments subject to Sections 280G and 4999 of the Code, including without limitation any employment agreement made between the Bank and the Executive, so as to cause a reduction of any excise tax pursuant to Section 4999 of the Code to equal "zero".
Internal Revenue Code Section 280G. (a) If the payments and benefits (including but not limited to payments and benefits pursuant to this Agreement) that Executive would receive in connection with a Change in Control of the Company, whether from the Company or otherwise (a “Transaction Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Company shall cause to be determined, before any amounts of the Transaction Payment are paid to Executive, which of the following two alternative forms of payment would result in Executive’s receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or some portion of the Transaction Payment may be subject to the Excise Tax: (1) payment in full of the entire amount of the Transaction Payment (a “Full Payment”), or (2) payment of only a part of the Transaction Payment so that Executive receives the largest payment possible without the imposition of the Excise Tax (a “Reduced Payment”).
(b) For purposes of determining whether to make a Full Payment or a Reduced Payment, the Company shall cause to be taken into account all applicable federal, state and local income and employment taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes). If a Reduced Payment is made, (i) Executive shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (ii) reduction in payments and/or benefits shall occur in the following order: (1) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits (if any) paid to Executive. In the event that acceleration of compensation from Executive’s equity awards is to be reduced, such acceleration of vesting shall be canceled in the reverse order of the date of grant.
(c) The independent registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the Termination Date shall make all determinations required to be made under this Section 4.6. If the independent registered public accounting firm so engaged by the Company is serving as accountant or ...
Internal Revenue Code Section 280G. Notwithstanding anything to the contrary in this Agreement, if any payment under section 1 of this Agreement, either alone or together with other payments and benefits which the Executive has the right to receive from the Seller and its affiliated companies or their successors, would be subject to the excise tax imposed by section 4999 of the Code, payments under section 1 of this Agreement shall be reduced by the amount, if any, which is the minimum necessary to result in no portion of such payments being subject to the excise tax imposed under Section 4999 of the Code. All calculations required to be made in order to determine whether payments would be subject to the excise tax imposed under section 4999 of the Code, including the assumptions to be utilized in arriving at such determination, shall be made by Xxxxx Xxxxxxx, LLP or such other firm of independent public accountant as the Seller may designate with the consent of the Executive (which consent may be given or withheld in the Executive’s sole and absolute discretion) (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Buyer and the Executive within 15 business days of the receipt of demand from the Executive, or such earlier time as is requested by the Buyer. All fees and expenses of the Accounting Firm shall be borne solely by the Seller and/or the Buyer. Any determination by the Accounting Firm shall be binding upon the Buyer and the Executive and all other interested parties.
Internal Revenue Code Section 280G. The terms of this Section 9 override and control any and all other terms of this Agreement to the extent such terms are inconsistent with this Section 9. In the event that it is determined that any payment or distribution of any type to or for the benefit of Executive (whether under this Agreement or otherwise) made by the Company, by any of its affiliates, by any person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of section 280G of the Code, and the regulations thereunder) or by any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Total Payments”), would be subject to the excise tax imposed by section 4999 of the Code (or nondeductible by the Company under Code Section 280G) or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are collectively referred to as the “Excise Tax”), then the Total Payments shall be reduced so that the maximum amount of the Total Payments (after reduction) will be one dollar ($1.00) less than the amount that would cause the Total Payments to be subject to the Excise Tax; provided, however, that the Total Payments shall only be reduced to the extent the after-tax value of amounts received by Executive after application of the above reduction would exceed the after-tax value of the Total Payments received by the Executive without application of such reduction. In making any determination as to whether the Total Payments would be subject to an Excise Tax, consideration shall be given to whether any portion of the Total Payments could reasonably be considered, based on the relevant facts and circumstances, to be reasonable compensation for services rendered (whether before or after the consummation of the applicable Change in Control). If applicable, the particular payments that are to be reduced shall be subject to the mutual agreement of Executive and the Company, with a view to maximizing the value of the payments to Executive that are not reduced. All mathematical determinations and all determinations of whether any of the Total Payments are “parachute payments” (within the meaning of section 280G of the Code) that are required to be made under this section, shall be made by a nationally recognized independent audit or consulting firm selected by the Company (the “Accounta...
Internal Revenue Code Section 280G. In the event that it is determined that any payment or distribution of any type to the Employee or for the Employee’s benefit made by the Company, by any of its affiliates, by any Person who acquires ownership or effective control or ownership of a substantial portion of the Company’s assets (within the meaning of Section 280G of the Code and the regulations thereunder) or by any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are collectively referred to as the “Excise Tax”), then such payments or distributions or benefits shall be payable either: (a) in full or (b) in a lesser amount reflecting a reduction in payments to the extent necessary to result in no portion of such payments or distributions or benefits being subject to the Excise Tax. Method (b) shall be used unless method (a) provides a higher after-tax benefit to the Employee. If method (b) is used, then the Employee shall have the right to determine which payments or benefits will be reduced and in what magnitude. The Employee and the Company shall furnish such documentation and documents as may be necessary for the Company’s independent external accountants to perform the requisite computations and analysis contemplated by this Section 8.
Internal Revenue Code Section 280G. Notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement to the contrary, if all or any portion of the payments or benefits payable to Employee under this Agreement or otherwise (“Covered Payments”) constitute “excess parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and would, but for this Section 5.7, be subject to the excise tax imposed by Code Section 4999 (the “Excise Tax”), then prior to making the Covered Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to Employee of the Covered Payments after payment of the Excise Tax to (ii) the Net Benefit to Employee if the Covered Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments be reduced to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax. For this purpose, “Net Benefit” shall mean the present value of the Covered Payments net of all federal, state, local, foreign income, employment and excise taxes. Any reduction in the Covered Payments shall be made in a manner that maximizes Employee’s economic position. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code, and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. If reduction of the Covered Payments is not sufficient to avoid application of Code Sections 280G and 4999, Employee acknowledges and agrees that benefits under this Agreement may be eliminated altogether. The amount of the benefit reduction under this Section 5.7 shall be determined by the Bank, whose determination shall be conclusive and binding on the Bank and Employee.
Internal Revenue Code Section 280G. To the extent that due to the application of Internal Revenue Code Section 280G, reducing the benefits payable to Executive hereunder would increase the overall after tax proceeds to Executive, such benefits shall be reduced in a manner designed to produce the maximum after tax proceeds for Executive (including, if applicable, reducing Executive’s cash payments prior to canceling equity or option acceleration benefits).
