Common use of Parachute Payment Limitation Clause in Contracts

Parachute Payment Limitation. Notwithstanding any contrary provision in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G of the Code), and any of the payments and benefits described herein, together with any other payments which Employee has the right to receive from the Company, would, in the aggregate, constitute a “parachute payment” (as defined in Section 280G of the Code), then such payments and benefits shall be either (a) reduced (but not below zero) so that the aggregate present value of such payments and benefits received by Employee from the Company shall be $1.00 less than three times Employee’s “base amount” (as defined in Section 280G of the Code) and so that no portion of such payments received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code, or (b) paid in full, whichever produces the better net after-tax result for Employee (taking into account any applicable excise tax under Section 4999 of the Code and any applicable income tax). The determination as to whether any such reduction in the amount of the payments and benefits is necessary shall be made by the Board in its sole discretion and such determination shall be conclusive and binding on Employee; provided, however, that any such reduction shall be made in the manner that is most beneficial to Employee. If a reduced payment is made to Employee pursuant to clause (a) above and through error or otherwise that payment, when aggregated with other payments from the Company (or its affiliates) used in determining if a parachute payment exists, exceeds $1.00 less than three times Employee’s base amount, Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made.

Parachute Payment Limitation. Notwithstanding any contrary provision in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G of the Internal Revenue Code, as amended (the “Code”)), and any of the payments and benefits described herein, together with any other payments which Employee has the right to receive from the Company, would, in the aggregate, constitute a “parachute payment” (as defined in Section 280G of the Code), then such payments and benefits shall be either (a) reduced (but not below zero) so that the aggregate present value of such payments and benefits received by Employee from the Company shall be $1.00 less than three times Employee’s “base amount” (as defined in Section 280G of the Code) and so that no portion of such payments received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code, or (b) paid in full, whichever produces the better net after-tax result for Employee (taking into account any applicable excise tax under Section 4999 of the Code and any applicable income tax). The determination as to whether any such reduction in the amount of the payments and benefits is necessary shall be made by the Board Company in its sole discretion and such determination shall be conclusive and binding on Employee; provided, however, that any such reduction shall be made in the manner that is most beneficial to Employee. If a reduced payment is made to Employee pursuant to clause (a) above and through error or otherwise that payment, when aggregated with other payments from the Company (or its affiliates) used in determining if a parachute payment exists, exceeds $1.00 less than three times Employee’s base amount, Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made.

Parachute Payment Limitation. Notwithstanding any contrary provision in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G of the Code), and any of the payments and benefits described hereinSeverance Benefits referenced in subparagraph 9(b), together with any other payments which or benefits that Employee has the right to receive from the Company, would, Company (and affiliated entities required to be aggregated in the aggregate, accordance with Q/A-10 and Q/A-46 of Treas. Reg. §1.280G-1) would constitute a “parachute payment” (as defined in Section 280G of the Code), then such the payments and benefits provided hereunder shall be either (a) reduced (but not below zero) so that the aggregate present value of such payments and benefits received by Employee from the Company shall be $1.00 less than three times Employee’s “base amount” (as defined in Section 280G of the Code) (the “Safe Harbor Amount”) and so that no portion of such payments received by Employee shall be subject to the excise tax imposed by Section 4999 of the CodeCode (“Section 4999”), or (b) paid in full, whichever produces the better net after-tax result for Employee (taking into account any applicable excise tax under Section 4999 of the Code and any applicable income tax). The determination as to whether any such reduction in the amount of the payments and benefits is necessary shall be made by the Board Company in its sole discretion good faith and such determination shall be conclusive and binding on Employee; provided, however, that any such reduction shall be made in the manner that is most beneficial to Employee. If a reduced payment is made to Employee pursuant to clause (a) above and through error or otherwise that payment, when aggregated with other payments from the Company (or its affiliates) used in determining if a parachute payment exists, exceeds $1.00 less than three times Employee’s base amountthe Safe Harbor Amount, Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made.. If a reduction is made in accordance with clause (a) above, such reduction shall be made in the following order:

Parachute Payment Limitation. Notwithstanding any contrary provision Anything in this AgreementAgreement to the contrary notwithstanding, if Employee the Executive is a “disqualified individual” (as defined in Section 280G of the Code), and any of the payments and benefits described hereinprovided in for in this Agreement, together with any other payments and benefits which Employee the Executive has the right to receive from (collectively, the Company“Payments”), would, in the aggregate, would constitute a “parachute payment” (as defined in Section 280G of the Code), then such payments and benefits the Payments shall be either (a) reduced (but not below zero) so that the aggregate present value of such payments and benefits received by Employee from the Company shall Payments will be one dollar ($1.00 1.00) less than three times Employeethe Executive’s “base amount” (as defined in Section 280G of the Code) and so that no portion of such payments received by Employee the Payments shall be subject to the excise tax imposed by Section 4999 of the Code, or (b) paid in full, whichever produces the better net after-tax result for Employee the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any applicable income tax). The reduction of Payments, if any, shall be made by reducing the Payments in the reverse order in which the Payments would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time). The determination as to whether any such reduction in the amount of the payments and benefits Payments is necessary shall be made by the Board Company in its sole discretion good faith, and such determination shall be conclusive and binding on Employee; provided, however, that any such reduction shall be made in the manner that is most beneficial to EmployeeExecutive. If a reduced payment Payment is made to Employee pursuant to clause (a) above and or provided and, through error or otherwise otherwise, that paymentPayment, when aggregated with other payments and benefits from the Company (or its affiliatesaffiliated companies) used in determining if a “parachute payment payment” exists, exceeds one dollar ($1.00 1.00) less than three (3) times Employeethe Executive’s base amount, Employee then the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made.

Parachute Payment Limitation. Notwithstanding any provision to the contrary provision in contained herein except the last sentence of this AgreementSection 3(e), if Employee is the cash payments due and the other benefits to which the Executive shall become entitled under Section 3(a) or 3(b) hereof, either alone or together with other payments in the nature of compensation to the Executive which are contingent on a change in the ownership or effective control of the Company or the Bank or in the ownership of a substantial portion of the assets of the Company or the Bank or otherwise, would constitute a “disqualified individualparachute payment” (as defined in Section 280G of the Code)Code or any successor provision thereto, and any of the payments and benefits described herein, together with any other payments which Employee has the right to receive from the Company, would, in the aggregate, constitute a “parachute payment” (as defined in Section 280G of the Code), then such payments and benefits shall be either (a) reduced (but not below zero) so that to the largest aggregate present value of such payments and benefits received by Employee from the Company shall be $1.00 less than three times Employee’s “base amount” (amount as defined will result in Section 280G of the Code) and so that no portion of such payments received by Employee shall be thereof being subject to the excise tax imposed by Section 4999 of the Code, or (b) paid in full, whichever produces the better net after-tax result for Employee (taking into account any applicable excise tax under Section 4999 of the Code and (or any applicable successor provision thereto) or being non-deductible to the Company or the Bank for federal income taxtax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The determination as to whether any such reduction Company or the Bank in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e) and shall, consistent with the requirements of Section 409A of the Code, select from among the foregoing benefits and payments and benefits is necessary those which shall be made by reduced. No modification of, or successor provision to, Section 280G or Section 4999 of the Board in its sole discretion and such determination shall be conclusive and binding on Employee; providedCode subsequent to the date of this Agreement shall, however, that any such reduction shall reduce the benefits to which the Executive would be made entitled under this Agreement in the manner that is most beneficial absence of this Section 3(e) to Employee. If a greater extent than they would have been reduced payment is made to Employee pursuant to clause (a) above if Section 280G and through error Section 4999 of the Code had not been modified or otherwise that payment, when aggregated with other payments from the Company (or its affiliates) used in determining if a parachute payment exists, exceeds $1.00 less than three times Employee’s base amount, Employee shall immediately repay such excess superseded subsequent to the Company upon notification that an overpayment has been madedate of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e).

Parachute Payment Limitation. Notwithstanding any contrary provision in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G of the Internal Revenue Code, as amended (the “Code”)), and any of the payments and benefits described herein, together with any other payments which Employee has the right to receive from the Company, would, in the aggregate, constitute a “parachute payment” (as defined in Section 280G of the Code), then such payments and benefits shall be either (a) reduced (but not below zero) so that the aggregate present value of such payments and benefits received by Employee from the Company shall be $1.00 less than three times Employee’s “base amount” (as defined in Section 280G of the Code) and so that no portion of such payments received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code, or (b) paid in full, whichever produces the better net after-tax result for Employee (taking into account any applicable excise tax under Section 4999 of the Code and any applicable income tax). The determination as to whether any such reduction in the amount of the payments and benefits is necessary shall be made by the Board in its sole discretion and such determination shall be conclusive and binding on Employee; provided, however, that any such reduction shall be made in the manner that is most beneficial to Employee. If a reduced payment is made to Employee pursuant to clause (a) above and through error or otherwise that payment, when aggregated with other payments from the Company (or its affiliates) used in determining if a parachute payment exists, exceeds $1.00 less than three times Employee’s base amount, Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made.

Parachute Payment Limitation. Notwithstanding any contrary provision in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G of the Code), and any of the payments and benefits described herein, together with any other payments which Employee has the right to receive from the Company, would, in the aggregate, constitute a “parachute payment” (as defined in Section 280G of the Code), then such payments and benefits shall be either (a) reduced (but not below zero) so that the aggregate present value of such payments and benefits received by Employee from the Company shall be $1.00 less than three times Employee’s “base amount” (as defined in Section 280G of the Code) and so that no portion of such payments received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code, or (b) paid in full, whichever produces the better net after-tax result for Employee (taking into account any applicable excise tax under Section 4999 of the Code and any applicable income tax). The determination as to whether any such reduction in the amount of the payments All calculations and benefits is necessary determinations under this Section 9 shall be made by the Board acting reasonably and in its sole discretion and such determination good faith after consulting a reputable accounting firm or tax counsel appointed by the Company (the “Tax Counsel”) whose determinations shall be conclusive and binding on Employee; provided, however, that any such reduction shall be made in the manner that is most beneficial to Employee. If a reduced payment is made to Employee pursuant to clause (a) above and through error or otherwise that payment, when aggregated with other payments from the Company (or its affiliates) used in determining if a parachute payment existsand Employee for all purposes. For purposes of making the calculations and determinations required by this Section 9, exceeds $1.00 less than three times Employee’s base amountthe Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Company and Employee shall immediately repay furnish the Tax Counsel with such excess information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 9. The Company shall bear all costs the Company upon notification that an overpayment has been madeTax Counsel may reasonably incur in connection with its services.

Parachute Payment Limitation. Notwithstanding any contrary provision in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G of the Code), and any of the payments and benefits described herein, together with any other payments which Employee has the right to receive from the Company, would, in the aggregate, constitute a “parachute payment” (as defined in Section 280G of the Code), then such payments and benefits shall be either (a) reduced (but not below zero) so that the aggregate present value of such payments and benefits received by Employee from the Company shall be $1.00 less than three times Employee’s “base amount” (as defined in Section 280G of the Code) and so that no portion of such payments received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code, or (b) paid in full, whichever produces the better net after-tax result for {00033970.DOCX:1 } Employee (taking into account any applicable excise tax under Section 4999 of the Code and any applicable income tax). The determination as to whether any such reduction in the amount of the payments and benefits is necessary shall be made by the Board in its sole discretion and such determination shall be conclusive and binding on Employee; provided, however, that any such reduction shall be made in the manner that is most beneficial to Employee. If a reduced payment is made to Employee pursuant to clause (a) above and through error or otherwise that payment, when aggregated with other payments from the Company (or its affiliates) used in determining if a parachute payment exists, exceeds $1.00 less than three times Employee’s base amount, Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made.

Parachute Payment Limitation. (a) Notwithstanding any contrary provision anything in this AgreementAgreement to the contrary, if Employee is a “disqualified individual” any severance pay or benefits payable under this Agreement (as defined in without the application of this Section 280G of the Code7.7), and either alone or together with other payments, awards, benefits or distributions (or any acceleration of any payment, award, benefit or distribution) pursuant to any agreement, plan or arrangement with the Company or any of its affiliates (the payments and benefits described herein“Total Payments”), together with any other payments which Employee has the right to receive from the Company, would, in the aggregate, would constitute a “parachute payment” (as defined in Section 280G of the Code), then the following shall occur: (i) Company’s independent auditors (the “Auditor”) shall compute the net present value to Executive of all the Total Payments after reduction for the excise taxes imposed by Section 4999 of the Code and for any normal income taxes that would be imposed on Executive if such payments Total Payments constituted Executive’s sole taxable income; and benefits (ii) The Auditor shall be either (a) reduced (but not below zero) so that next compute the aggregate maximum net present value of the Total Payments that can be provided without any such payments and benefits received by Employee from the Company shall be $1.00 less than three times Employee’s Total Payments being characterized as “base amountExcess Parachute Payments” (as defined in Section 280G of the Code) and so reduce the result by the amount of any normal income taxes that no portion of would be imposed on Executive if such payments received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code, or reduced Total Payments constituted Executive’s sole taxable income. (b) paid If the result derived in fullclause (i) above is greater than the result derived in clause (ii) above, whichever produces then the better net after-tax result for Employee (taking into account any applicable excise tax under Section 4999 Company shall pay Executive the full amount of the Code and Total Payments without reduction. If the result derived from clause (i) above is not greater than the result derived in clause (ii) above, then the Company shall pay Executive the maximum Total Payments possible without any applicable income tax)such Total Payments being characterized as Excess Parachute Payments. The determination of how such Total Payments will be reduced shall be made by Executive in good faith after consultation with the Company and otherwise in accordance with applicable law. (c) If, as to whether a result of any uncertainty in the application of Section 4999 at the time of the initial determination by the Auditor under Section 7.7(a), the Auditor subsequently determines that (i) the Total Payments should have been reduced or reduced by a larger amount (an “Overpayment”), any such Overpayment, to the extent actually paid or provided to the Executive, shall be repaid by the Executive to the Company in full within thirty (30) days after the Executive receives notice of the Auditor’s determination; provided, however, that the amount of the Overpayment to be repaid by the Executive to the Company will be reduced to the extent that the Auditor determines that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in the amount of the payments and benefits is necessary Executive’s Excess Parachute Payments by reason of such repayment, or (ii) the Total Payments should not have been reduced or should have been reduced by a smaller amount (an “Underpayment”), any such Underpayment shall be made deemed vested and payable by the Board in its sole discretion and such determination shall be conclusive and binding on Employee; provided, however, that any such reduction shall be made in Company to the manner that is most beneficial to Employee. If a reduced payment is made to Employee pursuant to clause Executive within thirty (a30) above and through error or otherwise that payment, when aggregated with other payments from days after the Company (receives notice of the Auditor’s determination, or such later date that such payment becomes vested and due under its affiliates) used in determining if a parachute payment exists, exceeds $1.00 less than three times Employee’s base amount, Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made.terms. 7.8

Parachute Payment Limitation. Notwithstanding any contrary provision in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G of the Code), and any of the Change in Control payments and benefits described hereinin paragraph 8, together with any other payments which Employee has the right to receive from the Company, would, in the aggregate, would constitute a “parachute payment” (as defined in Section 280G of the Code), then such the payments and benefits provided hereunder shall be either (a) reduced (but not AMENDED AND RESTATED EMPLOYMENT AGREEMENT - Page 11 below zero) so that the aggregate present value of such payments and benefits received by Employee from the Company shall be $1.00 less than three times Employee’s “base amount” (as defined in Section 280G of the Code) and so that no portion of such payments received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code, or (b) paid in full, whichever produces the better net after-tax result for Employee (taking into account any applicable excise tax under Section 4999 of the Code and any applicable income tax). The determination as to whether any such reduction in the amount of the payments and benefits is necessary shall be made by the Board Company in its sole discretion good faith and such determination shall be conclusive and binding on Employee; provided, however, that any such reduction shall be made in the manner that is most beneficial to Employee. If a reduced payment is made to Employee pursuant to clause (a) above and through error or otherwise that payment, when aggregated with other payments from the Company (or its affiliates) used in determining if a parachute payment exists, exceeds $1.00 less than three times Employee’s base amount, Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made.

Parachute Payment Limitation. Notwithstanding any contrary provision in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G of the Code), and any of the payments and benefits described hereinSeverance Benefits referenced in subparagraph 8(b), together with any other payments or benefits which Employee has the right to receive from the Company, would, Company (and affiliated entities required to be aggregated in the aggregate, accordance with Q/A-10 and Q/A-46 of Treas. Reg. §1.280G-1) would constitute a “parachute payment” (as defined in Section 280G of the Code), then such the payments and benefits provided hereunder shall be either (a) reduced (but not below zero) so that the aggregate present value of such payments and benefits received by Employee from the Company shall be $1.00 less than three times Employee’s “base amount” (as defined in Section 280G of the Code) (the “Safe Harbor Amount”) and so that no portion of such payments received by Employee shall be subject to the excise tax imposed by Section 4999 of the CodeCode (“Section 4999”), or (b) paid in full, whichever produces the better net after-tax result for Employee (taking into account any applicable excise tax under Section 4999 of the Code and any applicable income tax). The determination as to whether any such reduction in the amount of the payments and benefits is necessary shall be made by the Board Company in its sole discretion good faith and such determination shall be conclusive and binding on Employee; provided, however, that any such reduction shall be made in the manner that is most beneficial to Employee. If a reduced payment is made to Employee pursuant to clause (a) above and through error or otherwise that payment, when aggregated with other payments from the Company (or its affiliates) Affiliates used in determining if a parachute payment exists, exceeds $1.00 less than three times Employee’s base amountthe Safe Harbor Amount, Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made.. If a reduction is made in accordance with clause (a) above, such reduction shall be made in the following order:

Parachute Payment Limitation. Notwithstanding any contrary provision in this Agreement, if Employee is a “disqualified individual” (as defined in Section 280G of the Code), and any of the payments and benefits described hereinSeverance Benefits referenced in subparagraph 7(b), together with any other payments or benefits which Employee has the right to receive from the Company, would, Company (and affiliated entities required to be aggregated in the aggregate, accordance with Q/A-10 and Q/A-46 of Treas. Reg. §1.280G-1) would constitute a “parachute payment” (as defined in Section 280G of the Code), then such the payments and benefits provided hereunder shall be either (a) reduced (but not below zero) so that the aggregate present value of such payments and benefits received by Employee from the Company shall be $1.00 less than three times Employee’s “base amount” (as defined in Section 280G of the Code) (the “Safe Harbor Amount”) and so that no portion of such payments received by Employee shall be subject to the excise tax imposed by Section 4999 of the CodeCode (“Section 4999”), or (b) paid in full, whichever produces the better net after-tax result for Employee (taking into account any applicable excise tax under Section 4999 of the Code and any applicable income tax). The determination as to whether any such reduction in the amount of the payments and benefits is necessary shall be made by the Board Company in its sole discretion good faith and such determination shall be conclusive and binding on Employee; provided, however, that any such reduction shall be made in the manner that is most beneficial to Employee. If a reduced payment is made to Employee pursuant to clause (a) above and through error or otherwise that payment, when aggregated with other payments from the Company (or its affiliatesany of the Company’s Affiliates) used in determining if a parachute payment exists, exceeds $1.00 less than three times Employee’s base amountthe Safe Harbor Amount, Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made.. If a reduction is made in accordance with clause (a) above, such reduction shall be made in the following order: