Common use of Parachute Payment Limitation Clause in Contracts

Parachute Payment Limitation. (a) Anything in this Agreement to the contrary notwithstanding, if the Executive is a “disqualified individual” (as defined in Section 280G of the Code), and the severance benefits provided in Section 3, together with any other payments which the Executive has the right to receive, would constitute a “parachute payment” (as defined in Section 280G of the Code), the severance benefits provided hereunder that constitute a parachute payment shall be either (i) reduced (but not below zero) so that the aggregate present value of such payments received by the Executive from the Company will be one dollar ($1.00) less than three times the Executive’s “base amount” (as defined in Section 280G of the Code) and so that no portion of such payments received by the Executive shall be subject to the excise tax imposed by Section 4999 of the Code, or (ii) paid in full, whichever produces the better net after-tax result for the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). (b) In making any reductions pursuant to Section 5(a), above, the Company shall reduce or eliminate amounts first by reducing those amounts that are not payable in cash, and then by reducing or eliminating cash amounts, in each case in reverse order beginning with amounts, if any, that are to be paid the farthest in time from the Date of Qualifying Termination; provided, however, that no amount that is subject to the Section 409A Rules shall be reduced or eliminated until all amounts that are not subject to the Section 409A Rules have been eliminated, and then all such amounts that are subject to the Section 409A Rules shall not be reduced in reverse order but shall be reduced proportionally. The determination of the base amount, the present value of the parachute payments, and the amount of any benefit to be reduced shall be determined by the Company’s independent auditors, or such other nationally recognized accounting firm mutually acceptable to the Company and Executive, in accordance with the principles of Section 280G of the Code and based upon the advice of any tax counsel selected by such auditors or other accounting firm. If a reduced payment is made 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 one dollar ($1.00) less than three times the Executive’s base amount, the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made.

Parachute Payment Limitation. (a) Anything Notwithstanding any contrary provision in this Agreement to the contrary notwithstandingAgreement, if the Executive Employee is a “disqualified individual” (as defined in Section 280G of the Code), and any of the severance payments and benefits provided in Section 3described herein, together with any other payments which the Executive Employee has the right to receivereceive from the Company, would would, in the aggregate, constitute a “parachute payment” (as defined in Section 280G of the Code), the severance then such payments and benefits provided hereunder that constitute a parachute payment shall be either (ia) reduced (but not below zero) so that the aggregate present value of such payments and benefits received by the Executive Employee from the Company will shall be one dollar ($1.00) 1.00 less than three times the ExecutiveEmployee’s “base amount” (as defined in Section 280G of the Code) and so that no portion of such payments received by the Executive Employee shall be subject to the excise tax imposed by Section 4999 of the Code, or (iib) paid in full, whichever produces the better net after-tax result for the Executive Employee (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxesincome tax). (b) In making . The determination as to whether any reductions pursuant to Section 5(a), above, such reduction in the Company amount of the payments and benefits is necessary shall reduce or eliminate amounts first be made by reducing those amounts that are not payable the Board in cash, its sole discretion and then by reducing or eliminating cash amounts, in each case in reverse order beginning with amounts, if any, that are to such determination shall be paid the farthest in time from the Date of Qualifying Terminationconclusive and binding on Employee; provided, however, that no amount any such reduction shall be made in the manner that is subject most beneficial to the Section 409A Rules shall be reduced or eliminated until all amounts that are not subject to the Section 409A Rules have been eliminated, and then all such amounts that are subject to the Section 409A Rules shall not be reduced in reverse order but shall be reduced proportionally. The determination of the base amount, the present value of the parachute payments, and the amount of any benefit to be reduced shall be determined by the Company’s independent auditors, or such other nationally recognized accounting firm mutually acceptable to the Company and Executive, in accordance with the principles of Section 280G of the Code and based upon the advice of any tax counsel selected by such auditors or other accounting firmEmployee. 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” payment exists, exceeds one dollar ($1.00) 1.00 less than three times the ExecutiveEmployee’s base amount, the Executive Employee shall immediately repay such excess to the Company upon notification that an overpayment has been made.

Parachute Payment Limitation. (a) Anything in this Agreement to the contrary notwithstanding, if the Executive is a “disqualified individual” (as defined in Section 280G of the Code), and the severance payments and benefits provided for in Section 3this Agreement, together with any other payments and benefits which the Executive has the right to receivereceive (collectively, the “Payments”), would constitute a “parachute payment” (as defined in Section 280G of the Code), then the severance benefits provided hereunder that constitute a parachute payment Payments shall be either (ia) reduced (but not below zero) so that the aggregate present value of such payments received by the Executive from the Company Payments will be one dollar ($1.00) less than three times the Executive’s “base amount” (as defined in Section 280G of the Code) and so that no portion of such payments received by the Executive Payments shall be subject to the excise tax imposed by Section 4999 of the Code, or (iib) paid in full, whichever produces the better net after-tax result for the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxesincome 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). (b) In making any reductions pursuant The determinations as to Section 5(a), above, the Company shall reduce or eliminate amounts first by reducing those amounts that are not payable in cash, and then by reducing or eliminating cash amounts, in each case in reverse order beginning with amounts, if any, that are Payments to be paid the farthest in time from the Date of Qualifying Termination; provided, however, that no amount that is subject to the Section 409A Rules shall be reduced or eliminated until all amounts that are not subject to the Section 409A Rules have been eliminated, and then all such amounts that are subject to the Section 409A Rules shall not be reduced in reverse order but shall be reduced proportionally. The determination of the base amount, the present value of the parachute payments, and the amount of any benefit to be reduced reduction shall be determined made by the Company’s independent auditorsCompany in good faith, or and such other nationally recognized accounting firm mutually acceptable to determinations shall be conclusive and binding on the Company and Executive, in accordance with the principles of Section 280G of the Code and based upon the advice of any tax counsel selected by such auditors or other accounting firm. If a reduced payment Payment is made 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” exists, exceeds one dollar ($1.00) less than three (3) times the Executive’s base amount, the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made.

Parachute Payment Limitation. (a) Anything Notwithstanding anything in this Agreement to the contrary notwithstandingcontrary, if any severance pay or benefits payable under this agreement (without the Executive is a “disqualified individual” (as defined in application of this Section 280G of the Code15), and the severance benefits provided in Section 3, either alone or together with other payments, awards, benefits or distributions (or any other payments which acceleration of any payment, award, benefit or distribution) pursuant to any agreement, plan or arrangement with the Executive has Company or any of its affiliates (the right to receive“Total Payments”), would constitute a “parachute payment” (as defined in Section 280G of the U.S. Internal Revenue Code of 1986, as amended, and regulations thereunder (the “Code”)), then the severance benefits provided hereunder that constitute a parachute payment following shall be either occur: (i) reduced Company’s independent auditors (but not below zerothe “Auditor”) so that shall compute the aggregate net present value to Executive of all the Total Payments after reduction for the excise taxes imposed by Code Section 4999 and for any normal income taxes that would be imposed on Executive if such payments received by the Executive from the Company will be one dollar ($1.00) less than three times the Total Payments constituted Executive’s sole taxable income; and (ii) The Auditor shall next compute the maximum Total Payments that can be provided without any such Total Payments being characterized as “base amountExcess Parachute Payments” (as defined in Code Section 280G of the CodeG) and so that no portion of such payments received reduce the result by the amount of any normal income taxes that would be imposed on Executive shall be subject to the excise tax imposed by Section 4999 of the Code, or (ii) paid in full, whichever produces the better net after-tax result for the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes)if such reduced Total Payments constituted Executive’s sole taxable income. (b) In making any reductions pursuant to Section 5(a), If the result derived in clause (i) above is greater than the result derived in clause (ii) above, then the Company shall reduce or eliminate amounts first by reducing those amounts that are pay Executive the full amount of the Total Payments without reduction. If the result derived from clause (i) above is not payable greater than the result derived in cashclause (ii) above, and then by reducing or eliminating cash amounts, in each case in reverse order beginning with amounts, if any, that are to be paid the farthest in time from Company shall pay Executive the Date of Qualifying Termination; provided, however, that no amount that is subject to the Section 409A Rules shall be reduced or eliminated until all amounts that are not subject to the Section 409A Rules have been eliminated, and then all maximum Total Payments possible without any such amounts that are subject to the Section 409A Rules shall not be reduced in reverse order but shall be reduced proportionallyTotal Payments being characterized as Excess Parachute Payments. The determination of the base amount, the present value of the parachute payments, and the amount of any benefit to how such Total Payments will be reduced shall be determined made by Executive in good faith after consultation with the Company’s independent auditors, or such other nationally recognized accounting firm mutually acceptable to the Company and Executive, in accordance with the principles of Section 280G of the Code and based upon the advice of any tax counsel selected by such auditors or other accounting firm. If a reduced payment is made 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 one dollar ($1.00) less than three times the Executive’s base amount, the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made.

Parachute Payment Limitation. (a) Anything in this Agreement Notwithstanding any provision to the contrary notwithstandingcontained herein except the last sentence of this Section 3(e), if the cash payments due and the other benefits to which the Executive is 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, such payments and the severance benefits provided in Section 3, together with any other payments which the Executive has the right to receive, would constitute a “parachute payment” (as defined in Section 280G of the Code), the severance benefits provided hereunder that constitute a parachute payment shall be either (i) reduced (but not below zero) so that to the largest aggregate present value of such payments received by the Executive from the Company amount as will be one dollar ($1.00) less than three times the Executive’s “base amount” (as defined result in Section 280G of the Code) and so that no portion of such payments received by the Executive shall be thereof being subject to the excise tax imposed by Section 4999 of the Code, or (ii) paid in full, whichever produces the better net after-tax result for the Executive (taking into account any applicable excise tax under Section 4999 of the Code and (or any other applicable taxes). (bsuccessor provision thereto) In making any reductions pursuant to Section 5(a), above, the Company shall reduce or eliminate amounts first by reducing those amounts that are not payable in cash, and then by reducing or eliminating cash amounts, in each case in reverse order beginning with amounts, if any, that are to be paid the farthest in time from the Date of Qualifying Termination; provided, however, that no amount that is subject to the Section 409A Rules shall be reduced or eliminated until all amounts that are not subject to the Section 409A Rules have been eliminated, and then all such amounts that are subject to the Section 409A Rules shall not be reduced in reverse order but shall be reduced proportionally. The determination of the base amount, the present value of the parachute payments, and the amount of any benefit to be reduced shall be determined by the Company’s independent auditors, or such other nationally recognized accounting firm mutually acceptable being non-deductible to the Company and Executive, in accordance with or the principles of Bank for federal income tax purposes pursuant to Section 280G of the Code and based upon (or any successor provision thereto). The Company or the advice Bank in good faith shall determine the amount of any tax counsel selected by such auditors 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 those which shall be reduced. No modification of, or other accounting firm. If a reduced payment is made and through error successor provision to, Section 280G or otherwise that paymentSection 4999 of the Code subsequent to the date of this Agreement shall, when aggregated with other payments from however, reduce the Company (or its affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times the Executive’s base amount, benefits to which the Executive shall immediately repay such excess would be entitled under this Agreement in the absence of this Section 3(e) to a greater extent than they would have been reduced if Section 280G and Section 4999 of the Code had not been modified or 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. (a) Anything Notwithstanding anything in this Agreement to the contrary notwithstandingcontrary, if any severance pay or benefits payable under this agreement (without the Executive is a “disqualified individual” (as defined in application of this Section 280G of the Code13), and the severance benefits provided in Section 3, either alone or together with other payments, awards, benefits or distributions (or any other payments which acceleration of any payment, award, benefit or distribution) pursuant to any agreement, plan or arrangement with the Executive has Company or any of its affiliates (the right to receive“Total Payments”), would constitute a “parachute payment” (as defined in Section 280G of the U.S. Internal Revenue Code of 1986, as amended, and regulations thereunder (the “Code”)), then the severance benefits provided hereunder that constitute a parachute payment following shall be either occur: (i) reduced Company’s independent auditors (but not below zerothe “Auditor”) so that shall compute the aggregate net present value to Executive of all the Total Payments after reduction for the excise taxes imposed by Code Section 4999 and for any normal income taxes that would be imposed on Executive if such payments received by the Executive from the Company will be one dollar ($1.00) less than three times the Total Payments constituted Executive’s sole taxable income; and (ii) The Auditor shall next compute the maximum Total Payments that can be provided without any such Total Payments being characterized as “base amountExcess Parachute Payments” (as defined in Code Section 280G of the CodeG) and so that no portion of such payments received reduce the result by the amount of any normal income taxes that would be imposed on Executive shall be subject to the excise tax imposed by Section 4999 of the Code, or (ii) paid in full, whichever produces the better net after-tax result for the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes)if such reduced Total Payments constituted Executive’s sole taxable income. (b) In making any reductions pursuant to Section 5(a), If the result derived in clause (i) above is greater than the result derived in clause (ii) above by more than 10% of the result derived in clause (ii) above, then Xxxxxx shall pay Executive the full amount of the Total Payments without reduction. If the result derived from clause (i) above is not greater than the result derived in clause (ii) above by more than 10% of the result derived in clause (ii) above, then the Company shall reduce or eliminate amounts first by reducing those amounts that are not payable in cash, and then by reducing or eliminating cash amounts, in each case in reverse order beginning with amounts, if any, that are to be paid pay Executive the farthest in time from the Date of Qualifying Termination; provided, however, that no amount that is subject to the Section 409A Rules shall be reduced or eliminated until all amounts that are not subject to the Section 409A Rules have been eliminated, and then all maximum Total Payments possible without any such amounts that are subject to the Section 409A Rules shall not be reduced in reverse order but shall be reduced proportionallyTotal Payments being characterized as Excess Parachute Payments. The determination of the base amount, the present value of the parachute payments, and the amount of any benefit to how such Total Payments will be reduced shall be determined made by Executive in good faith after consultation with the Company’s independent auditors, or such other nationally recognized accounting firm mutually acceptable to the Company and Executive, in accordance with the principles of Section 280G of the Code and based upon the advice of any tax counsel selected by such auditors or other accounting firm. If a reduced payment is made 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 one dollar ($1.00) less than three times the Executive’s base amount, the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made.

Parachute Payment Limitation. (a) Anything Notwithstanding anything in this Agreement to the contrary notwithstandingcontrary, if any severance pay or benefits payable under this Agreement (without the Executive is a “disqualified individual” (as defined in application of this Section 280G of the Code15), and the severance benefits provided in Section 3, either alone or together with other payments, awards, benefits or distributions (or any other payments which acceleration of any payment, award, benefit or distribution) pursuant to any agreement, plan or arrangement with the Executive has Company or any of its affiliates (the right to receive“Total Payments”), would constitute a “parachute payment” (as defined in Section 280G of the Code), then the severance benefits provided hereunder that constitute a parachute payment following shall be either occur: (i) reduced Company’s independent auditors (but not below zerothe “Auditor”) so that shall compute the aggregate net present value to Executive of all the Total Payments after reduction for the excise taxes imposed by Code Section 4999 and for any normal income taxes that would be imposed on Executive if such payments received by the Executive from the Company will be one dollar ($1.00) less than three times the Total Payments constituted Executive’s sole taxable income; and (ii) The Auditor shall next compute the maximum Total Payments that can be provided without any such Total Payments being characterized as “base amountExcess Parachute Payments” (as defined in Code Section 280G of the CodeG) and so that no portion of such payments received reduce the result by the amount of any normal income taxes that would be imposed on Executive shall be subject to the excise tax imposed by Section 4999 of the Code, or (ii) paid in full, whichever produces the better net after-tax result for the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes)if such reduced Total Payments constituted Executive’s sole taxable income. (b) In making any reductions pursuant to Section 5(a), If the result derived in clause (i) above is greater than the result derived in clause (ii) above, then the Company shall reduce or eliminate amounts first by reducing those amounts that are pay Executive the full amount of the Total Payments without reduction. If the result derived from clause (i) above is not payable greater than the result derived in cashclause (ii) above, and then by reducing or eliminating cash amounts, in each case in reverse order beginning with amounts, if any, that are to be paid the farthest in time from Company shall pay Executive the Date of Qualifying Termination; provided, however, that no amount that is subject to the Section 409A Rules shall be reduced or eliminated until all amounts that are not subject to the Section 409A Rules have been eliminated, and then all maximum Total Payments possible without any such amounts that are subject to the Section 409A Rules shall not be reduced in reverse order but shall be reduced proportionallyTotal Payments being characterized as Excess Parachute Payments. The determination of the base amount, the present value of the parachute payments, and the amount of any benefit to how such Total Payments will be reduced shall be determined made by Executive in good faith after consultation with the Company’s independent auditors, or such other nationally recognized accounting firm mutually acceptable to the Company and Executive, in accordance with the principles of Section 280G of the Code and based upon the advice of any tax counsel selected by such auditors or other accounting firm. If a reduced payment is made 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 one dollar ($1.00) less than three times the Executive’s base amount, the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made.

Parachute Payment Limitation. (a) Anything in this Agreement to the contrary notwithstanding, if the Executive is a “disqualified individual” (as defined in Section 280G of the Code), and the severance benefits provided in Section 3, together with any other payments which the Executive has the right to receive, would constitute a “parachute payment” (as defined in Section 280G of the Code), the severance benefits provided hereunder that constitute a parachute payment shall be either (i) reduced (but not below zero) so that the aggregate present value of such payments received by the Executive from the Company will be one dollar ($1.00) less than three times the Executive’s “base amount” (as 5 defined in Section 280G of the Code) and so that no portion of such payments received by the Executive shall be subject to the excise tax imposed by Section 4999 of the Code, or (ii) paid in full, whichever produces the better net after-tax result for the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). (b) In making any reductions pursuant to Section 5(a), above, the Company shall reduce or eliminate amounts first by reducing those amounts that are not payable in cash, and then by reducing or eliminating cash amounts, in each case in reverse order beginning with amounts, if any, that are to be paid the farthest in time from the Date of Qualifying Termination; provided, however, that no amount that is subject to the Section 409A Rules shall be reduced or eliminated until all amounts that are not subject to the Section 409A Rules have been eliminated, and then all such amounts that are subject to the Section 409A Rules shall not be reduced in reverse order but shall be reduced proportionally. The determination of the base amount, the present value of the parachute payments, and the amount of any benefit to be reduced shall be determined by the Company’s independent auditors, or such other nationally recognized accounting firm mutually acceptable to the Company and Executive, in accordance with the principles of Section 280G of the Code and based upon the advice of any tax counsel selected by such auditors or other accounting firm. If a reduced payment is made 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 one dollar ($1.00) less than three times the Executive’s base amount, the Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made.