Common use of Parachute Taxes Clause in Contracts

Parachute Taxes. In the event that the Executive shall become entitled to payments and/or benefits provided by this Agreement or any other amounts in the “nature of compensation” (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Employer, any person whose actions result in a change of ownership or effective control covered by Code Section 280G(b)(2) or any person affiliated with any Employer or such person) as a result of such change in ownership or effective control (collectively the “Employer Payments”), and such Employer Payments would be subject to the tax (the “Excise Tax”) imposed by Code Section 4999 (and any similar tax that may hereafter be imposed by any taxing authority), then notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement with the Employer, the Employer shall pay and/or provide to the Executive only that portion of the Employer Payments which are in total equal to one dollar less than the amount of the Employer Payments that would subject the Executive to the Excise Tax. If the Employer Payments must be reduced pursuant to the preceding sentence, Employer Payments shall be reduced in the following order: (A) any amounts payable to the Executive pursuant to Section 7(c)(iii)(C); (B) any other cash amounts payable to the Executive; (C) the value as parachute payments of the acceleration of vesting of any stock options; (D) the value as parachute payments of the acceleration of vesting of any restricted stock; (E) the value as parachute payments of the acceleration of vesting of any equity interest not covered by (C) or (D) above; and (F) the value as parachute payments of any other benefits received. The Employer’s independent accountants, at the Employer’s expense, shall determine whether any of the Employer Payments are “parachute payments” within the meaning of Code Section 280G(b)(2) that would be subject to the Excise Tax, the projected amount of such Excise Tax and any other determinations required in the preceding paragraph. The determination of the accountants shall be final and binding upon the Employer and the Executive; provided, that in the event any initial determination under this subsection is subsequently modified by the Employer’s accountants or the IRS, Executive and Employer agree to reasonably cooperate to resolve any matter related thereto. In all cases, Executive shall be solely responsible for timely payment of any Excise Tax finally determined by the IRS to be due and payable with respect to the Employer Payments (as reduced, if applicable). Executive shall also promptly deliver to the Company copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered by this subsection.

Parachute Taxes. In Anything in this Agreement to the contrary notwithstanding, in the event that any compensation, payment or distribution by the Executive shall become entitled Company and all affiliates to payments and/or benefits provided by this Agreement or any other amounts in for the “nature benefit of compensation” (Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Employer, any person whose actions result in a change of ownership or effective control covered by Code Section 280G(b)(2) or any person affiliated with any Employer or such person) as a result of such change in ownership or effective control otherwise (collectively the “Employer Severance Payments”), and such Employer Payments would would, but for this Section 7(f), be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Excise TaxCode”) imposed by Code Section 4999 (and any similar tax that may hereafter be imposed by any taxing authority), then notwithstanding any other provision the following provisions shall apply: (i) if the Severance Payments, reduced by the sum of this Agreement or any other plan, arrangement or agreement with (A) the Employer, Excise Tax (as defined below) and (B) the Employer shall pay and/or provide to the Executive only that portion total of the Employer federal, state, and local income and employment taxes payable by Executive on the amount of the Severance Payments which are in total excess of the Threshold Amount (as defined below), are greater than or equal to one dollar the Threshold Amount, Executive shall be entitled to the full benefits payable under this Agreement, and (ii) if the Threshold Amount is less than (A) the Severance Payments, but greater than (B) the Severance Payments reduced by the sum of (1) the Excise Tax and (2) the total of the federal, state, and local income and employment taxes on the amount of the Employer Severance Payments that would subject which are in excess of the Executive to Threshold Amount, then the Excise Tax. If the Employer Payments must be reduced pursuant to the preceding sentence, Employer Payments benefits payable under this Agreement shall be reduced in the following order: (Abut not below zero) any amounts payable to the Executive pursuant to Section 7(c)(iii)(C); (B) any other cash amounts payable to extent necessary so that the maximum Severance Payments shall not exceed the Threshold Amount. For the purposes of this Section, “Threshold Amount” shall mean three times Executive; (C) the value as parachute payments of the acceleration of vesting of any stock options; (D) the value as parachute payments of the acceleration of vesting of any restricted stock; (E) the value as parachute payments of the acceleration of vesting of any equity interest not covered by (C) or (D) above; and (F) the value as parachute payments of any other benefits received. The Employer’s independent accountants, at the Employer’s expense, shall determine whether any of the Employer Payments are “parachute paymentsbase amount” within the meaning of Section 280G(b)(3) of the Internal Revenue Code Section 280G(b)(2of 1986, as amended (the “Code”) that would be subject to and the regulations promulgated thereunder less one dollar ($1.00) and “Excise Tax” shall mean the excise tax imposed by Section 4999 of the Code, the projected amount of such Excise Tax and any other determinations required in the preceding paragraphinterest or penalties incurred by Executive with respect to such excise tax. The determination as to which of the accountants alternative provisions of this Section 7(f) shall apply to Executive shall be final made by a nationally recognized accounting firm selected by the Company or one of its affiliates (the “Accounting Firm”). For purposes of determining which of the alternative provisions of this Section 7(f) shall apply, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s residence on the Termination Date, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding upon the Employer Company and Executive, absent fraud or manifest error. In addition, notwithstanding anything herein to the Executive; providedcontrary, that in the event any initial determination under this subsection is subsequently modified payments are to be reduced, the reduction shall take place in a manner that produces the greatest economic advantage to Executive (and if reduction of two or more payments produce the same economic advantage they shall be reduced proportionally), and any payment required shall be made by the Employerend of Executive’s accountants or taxable year next following the IRS, Company’s taxable year in which Executive and Employer agree to reasonably cooperate to resolve any matter related thereto. In all cases, Executive remits the payment (this sentence shall be solely responsible for timely payment of any Excise Tax finally determined by the IRS to be due and payable interpreted consistent with respect to the Employer Payments (as reduced, if applicableTreas. Reg. § 1.409A-3(i)(1)(v). Executive shall also promptly deliver to the Company copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered by this subsection).

Parachute Taxes. In the event that the Executive shall become entitled to payments and/or benefits provided by this Agreement or any other amounts in the “nature of compensation” (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Employer, any person whose actions result in a change of ownership or effective control covered by Code Section 280G(b)(2) or any person affiliated with any Employer or such person) as a result of such change in ownership or effective control (collectively the “Employer Payments”), and such Employer Payments would be subject to the tax (the “Excise Tax”) imposed by Code Section 4999 (and any similar tax that may hereafter be imposed by any taxing authority), then notwithstanding Notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement with to the Employercontrary, if any of the payments or benefits provided or to be provided by the Employer shall pay and/or provide or its Affiliates to the Executive only that portion of the Employer Payments which are in total equal to one dollar less than the amount of the Employer Payments that would subject the Executive to the Excise Tax. If the Employer Payments must be reduced or for Executive’s benefit pursuant to the preceding sentenceterms of this Agreement or otherwise (“Covered Payments”) constitute parachute payments (“Parachute Payments”) within the meaning of Section 280G of the Code and would, Employer Payments shall but for this Section 4(h), be reduced in subject to the following orderexcise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then the Covered Payments: (A) any amounts payable shall be reduced to the Executive pursuant minimum extent necessary to Section 7(c)(iii)(C); (B) any other cash amounts payable to the Executive; (C) the value as parachute payments ensure that no portion of the acceleration of vesting of any stock options; (D) the value as parachute payments of the acceleration of vesting of any restricted stock; (E) the value as parachute payments of the acceleration of vesting of any equity interest not covered by (C) or (D) above; and (F) the value as parachute payments of any other benefits received. The Employer’s independent accountants, at the Employer’s expense, shall determine whether any of the Employer Covered Payments are “parachute payments” within the meaning of Code Section 280G(b)(2) that would be is subject to the Excise TaxTax (that amount, the projected “Reduced Amount”); or (B) shall be payable in full if Executive’s receipt on an after-tax basis of the full amount of payments and benefits (after taking into account the applicable federal, state, local and foreign income, employment and excise taxes (including the Excise Tax)) would result in Executive retaining an amount greater than the Reduced Amount. Any determination required under this Section 4(h), including whether any payments or benefits are Parachute Payments, shall be made by the accounting firm or tax counsel selected by the Bank in its sole discretion (the “Tax Advisor”), which shall provide detailed supporting calculations to the Bank and Executive. The Bank and Executive shall provide the Tax Advisor with such Excise information and documents as the Tax Advisor may reasonably request in order to make a determination under this Section 4(h). For purposes of making the calculations and any other determinations required in by this Section 4(h), the preceding paragraphTax Advisor may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The determination of the accountants Tax Advisor’s determinations shall be final and binding upon on the Employer Bank and the Executive; provided, that in the event any initial determination under this subsection is subsequently modified . The Bank shall be responsible for all fees and expenses incurred by the Employer’s accountants or Tax Advisor in connection with the IRS, Executive and Employer agree to reasonably cooperate to resolve any matter related thereto. In all cases, Executive shall be solely responsible for timely payment of any Excise Tax finally determined by the IRS to be due and payable with respect to the Employer Payments (as reduced, if applicable). Executive shall also promptly deliver to the Company copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered calculations required by this subsectionSection 4(h).

Parachute Taxes. In the event that the Executive shall become entitled to payments and/or benefits provided by this Agreement or any other amounts in the “nature of compensation” (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Employer, any person whose actions result in a change of ownership or effective control covered by Code Section 280G(b)(2) or any person affiliated with any Employer or such person) as a result of such change in ownership or effective control (collectively the “Employer Payments”), and such Employer Payments would be subject to the tax (the “Excise Tax”) imposed by Code Section 4999 (and any similar tax that may hereafter be imposed by any taxing authority), then notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement with the Employer, the Employer shall pay and/or provide to the Executive the greater of the following, whichever gives the Executive the highest net after-tax amount (assuming that the Executive pays income taxes at the highest applicable marginal rates, and including the Excise Tax): (x) the Employer Payments; or (y) only that portion of the Employer Payments which are in total equal to one dollar less than the amount of the Employer Payments that would subject the Executive to the Excise Tax. If the Employer Payments must be reduced pursuant to the preceding sentence, Employer Payments shall be reduced in the following order: (A) any amounts payable to the Executive pursuant to Section 7(c)(iii)(C); (B) any other cash amounts payable to the Executive; (C) the value as parachute payments of the acceleration of vesting of any stock options; (D) the value as parachute payments of the acceleration of vesting of any restricted stock; (E) the value as parachute payments of the acceleration of vesting of any equity interest not covered by (C) or (D) above; and (F) the value as parachute payments of any other benefits received. The Employer’s independent accountants, at the Employer’s expense, shall determine whether any of the Employer Payments are “parachute payments” within the meaning of Code Section 280G(b)(2) that would be subject to the Excise Tax, the projected amount of such Excise Tax and any other determinations required in the preceding paragraph. The determination of the accountants shall be final and binding upon the Employer and the Executive; provided, that in the event any initial determination under this subsection is subsequently modified by the Employer’s accountants or the IRS, Executive and Employer agree to reasonably cooperate to resolve any matter related thereto. In all cases, Executive shall be solely responsible for timely payment of any Excise Tax finally determined by the IRS to be due and payable with respect to the Employer Payments (as reduced, if applicable). Executive shall also promptly deliver to the Company copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered by this subsection.

Parachute Taxes. In the event that the Executive shall become entitled to payments and/or benefits provided by this Agreement or any other amounts in the “nature of compensation” (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Employer, any person whose actions result in a change of ownership or effective control covered by Code Section 280G(b)(2) or any person affiliated with any Employer or such person) as a result of such change in ownership or effective control (collectively the “Employer Payments”), and such Employer Payments would be subject to the tax (the “Excise Tax”) imposed by Code Section 4999 (and any similar tax that may hereafter be imposed by any taxing authority), then notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement with the Employer, the Employer shall pay and/or provide to the Executive only that portion of the Employer Payments which are in total equal to one dollar less than the amount of the Employer Payments that would subject the Executive to the Excise Tax. If the Employer Payments must be reduced pursuant to the preceding sentence, Employer Payments shall be reduced in the following order: (A) any amounts payable to the Executive pursuant to Section 7(c)(iii)(C7(c)(iii)(2); (B) any other cash amounts payable to the Executive; (C) the value as parachute payments of the acceleration of vesting of any stock options; (D) the value as parachute payments of the acceleration of vesting of any restricted stock; (E) the value as parachute payments of the acceleration of vesting of any equity interest not covered by (C) or (D) above; and (F) the value as parachute payments of any other benefits received. The Employer’s independent accountants, at the Employer’s expense, shall determine whether any of the Employer Payments are “parachute payments” within the meaning of Code Section 280G(b)(2) that would be subject to the Excise Tax, the projected amount of such Excise Tax and any other determinations required in the preceding paragraph. The determination of the accountants shall be final and binding upon the Employer and the Executive; provided, that in the event any initial determination under this subsection is subsequently modified by the Employer’s accountants or the IRS, Executive and Employer agree to reasonably cooperate to resolve any matter related thereto. In all cases, Executive shall be solely responsible for timely payment of any Excise Tax finally determined by the IRS to be due and payable with respect to the Employer Payments (as reduced, if applicable). Executive shall also promptly deliver to the Company copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered by this subsection.the