Common use of Limitations on Payments Related to Change in Control Clause in Contracts

Limitations on Payments Related to Change in Control. The following apply notwithstanding any other provision of this Agreement: (i) Any payments that would otherwise be made pursuant to Section 10(d)(d)(iii) will be reduced by any base salary, cash bonus (including STIP pursuant to Section 6), or Severance Payments (as defined in Section 10(b)) received by Executive from the Company or its successor after the first to occur of a Change in Control or Executive's termination of employment. (ii) Executive's right to receive the payments described in Section 10(d)(iii) terminates (A) immediately if before the Change in Control transaction closes, Executive terminates his employment without Good Reason, or the Company and the Bank terminate Executive's employment for Cause, or (B) two (2) years after a Change of Control occurs. (iii) Notwithstanding anything to the contrary in this Agreement or any other agreement or plan, to the extent that any payment or distribution of any type to or for the benefit of Executive by the Company (or by any affiliate of the Company, any person or entity 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 Internal Revenue Code, and the regulations thereunder, or any affiliate of such person or entity), whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), is or will be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code (the "Excise Tax"), then the Total Payments shall be reduced (but not below zero) only if and to the extent that a reduction in the Total Payments would result in Executive retaining a larger amount, on an after-tax basis (taking into account federal, state, and local income taxes and the Excise Tax), than if Executive received the entire amount of such Total Payments. Unless Executive shall have given prior written notice specifying a different order to the Company to effectuate the foregoing, the Company shall reduce or eliminate the Total Payments by first reducing or eliminating the portion of the Total Payments that are cash payments, and then by reducing or eliminating the portion of the Total Payments that are not payable in cash, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as defined below); provided, however, that in all events, such reductions shall be done in a manner consistent with the requirements of Section 409A of the Internal Revenue Code, to the extent applicable. Any notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement, or agreement governing Executive's rights and entitlements to any benefits or compensation. The determination of whether the Total Payments shall be reduced as provided in this Section 10(e)(iii) and the amount of such reduction shall be made at the Company's expense by the Company's independent auditors (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation to the Company and Executive within twenty (20) days of the last day of Executive's employment (or within twenty [20] days of the date of the Change in Control, if later). The Company shall provide Executive with a reasonable opportunity to review and comment on the Accounting Firm's calculations prior to it finalizing the Determination. The Determination shall be binding, final, and conclusive upon the Company and Executive absent manifest error.

Limitations on Payments Related to Change in Control. The following apply notwithstanding any other provision of this Agreement: (i) Any payments that would otherwise be made pursuant to Section 10(d)(d)(iii10(d)(iii) will be reduced by any base salary, cash bonus (including STIP pursuant to Section 6), or Severance Payments (as defined in Section 10(b)) received by Executive from the Company Bank or its successor after the first to occur of a Change in Control or Executive's termination of employment. (ii) Executive's right to receive the payments described in Section 10(d)(iii) terminates (A) immediately if before the Change in Control transaction closes, Executive terminates his employment without Good Reason, or the Company and the Bank terminate Executive's employment for Cause, or (B) two (2) years after a Change of Control occurs. (iii) Notwithstanding anything to the contrary in this Agreement or any other agreement or plan, to the extent that any payment or distribution of any type to or for the benefit of Executive by the Company (or by any affiliate of the Company, any person or entity 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 Internal Revenue Code, and the regulations thereunder, or any affiliate of such person or entity), whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), is or will be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code (the "Excise Tax"), then the Total Payments shall be reduced (but not below zero) only if and to the extent that a reduction in the Total Payments would result in Executive retaining a larger amount, on an after-tax basis (taking into account federal, state, and local income taxes and the Excise Tax), than if Executive received the entire amount of such Total Payments. Unless Executive shall have given prior written notice specifying a different order to the Company to effectuate the foregoing, the Company shall reduce or eliminate the Total Payments by first reducing or eliminating the portion of the Total Payments that are cash payments, and then by reducing or eliminating the portion of the Total Payments that are not payable in cash, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as defined below); provided, however, that in all events, such reductions shall be done in a manner consistent with the requirements of Section 409A of the Internal Revenue Code, to the extent applicable. Any notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement, or agreement governing Executive's rights and entitlements to any benefits or compensation. The determination of whether the Total Payments shall be reduced as provided in this Section 10(e)(iii) and the amount of such reduction shall be made at the Company's expense by the Company's independent auditors (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation to the Company and Executive within twenty (20) days of the last day of Executive's employment (or within twenty [20] days of the date of the Change in Control, if later). The Company shall provide Executive with a reasonable opportunity to review and comment on the Accounting Firm's calculations prior to it finalizing the Determination. The Determination shall be binding, final, and conclusive upon the Company and Executive absent manifest error.