Limitation of Benefits Clause Example with 11 Variations from Business Contracts
This page contains Limitation of Benefits clauses in business contracts and legal agreements. An example clause is provided at the top of the page, followed by clauses with minor variations. You can view the text differences by selecting the "Show Differences" option.
Limitation of Benefits. (a) Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by the Company to or for the benefit of Executive (whether payable or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, payments or distributions are hereinafter referred to as "Payments") would, if paid, be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code, then the aggregate present value o...f the Payments shall be reduced (but not below zero) to an amount expressed in present value that maximizes the aggregate present value of the Payments without causing the Payments or any part thereof to be subject to the Excise Tax and therefore nondeductible by the Company because of Section 280G of the Code (the "Reduced Amount"). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as determined by the Determination Firm (as defined in Section 10(b) below). For purposes of this Section 10, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes of this Section 10, the "Parachute Value" of a Payment means the present value as of the date of the change of control of the portion of such Payment that constitutes a "parachute payment" under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. (b) All determinations required to be made under this Section 10, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, shall be made by an independent, nationally recognized accounting firm or compensation consulting firm mutually acceptable to the Company and Executive (the "Determination Firm") which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from Executive that a Payment is due to be made, or such earlier time as is requested by the Company. All fees and expenses of the Determination Firm shall be borne solely by the Company. Any determination by the Determination Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments hereunder will have been unnecessarily limited by this Section 10 ("Underpayment"), consistent with the calculations required to be made hereunder. The Determination Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code, but no later than March 15 of the year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. 14 (c) In the event that the provisions of Code Section 280G and 4999 or any successor provisions are repealed without succession, this Section 10 shall be of no further force or effect.View More
Variations of a "Limitation of Benefits" Clause from Business Contracts
Limitation of Benefits. (a) Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by the Company Bank to or for the benefit of Executive (whether payable or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, payments or distributions are hereinafter referred to as "Payments") would, if paid, be subject to an "excess parachute payment" within the excise tax (the "Excise Tax") imposed by meaning of Section...4999 280G of the Code, but for the application of this sentence ("Parachute Payments"), then the aggregate present value of the Payments shall be reduced (but not below zero) to an amount expressed in present value that maximizes the aggregate present value of the Payments without causing the Payments or any part thereof to be Parachute Payments; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate Payments to be provided, determined on an after-tax basis (taking into account the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), any tax imposed by any comparable provision of state law, and any applicable federal, state and local income and employment taxes). Whether requested by Executive or the Bank, the determination of whether any reduction in such Payments is required pursuant to the preceding sentence will be made at the expense of the Bank by an independent, nationally recognized accounting firm or compensation consulting firm mutually acceptable to the Bank and Executive (the "Determination Firm"). In the event the Payments are required to be reduced pursuant to this Section, the Payments will be reduced by category in the following order: (a) reduction or elimination of cash severance benefits that are subject to Code Section 409A (beginning with the amounts with the latest payment dates); (b) reduction or elimination of cash severance benefits that are not subject to Code Section 409A(beginning with the amounts with the latest payment dates); (c) reduction or elimination of any remaining portion of the Payments that are subject to Code Section 409A(beginning with the amounts with the latest payment dates); (d) reduction or elimination of any remaining portion of the Payments that are not subject to Code Section 409A (beginning with the amounts with the latest payment dates) and (e) cancellation of accelerated vesting of equity awards. In the event that acceleration of vesting of equity award compensation is to be cancelled, such acceleration of vesting will be cancelled in the order that maximizes the aggregate Payments to be provided, determined on an after-tax basis. (b) Section 7 of this Agreement contains covenants of Executive to refrain from certain activities deemed harmful to the Bank for a set period of time in exchange for the promises contained herein. If Executive is deemed eligible to receive Payments under this Agreement that could be 10 subject to the Excise Tax and therefore nondeductible by Tax, the Company because of Section 280G of the Code (the "Reduced Amount"). The reduction of the Payments due hereunder, if applicable, Bank shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as determined by seek a valuation from the Determination Firm (as defined to determine the value of the covenants contained in Section 10(b) below). 7 of this Agreement and such amount shall be allocated to such arrangements and be excluded from treatment as a Parachute Payment. For the avoidance of doubt, it is the intention of this Agreement that the value assigned to the covenants contained in Sections 7, 8 and 9 of this Agreement by the Accountants not be considered a Parachute Payment for purposes of this Section 4.4. (c) For purposes of this Section 10, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes of this Section 10, the "Parachute Value" of a Payment means the present value as of the date of the change of control of the portion of such Payment that constitutes a "parachute payment" under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. (b) All determinations required to be made under this Section 10, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, reduction, and the assumptions to be utilized in arriving at such determinations, shall be made in writing and in good faith by an independent, nationally recognized accounting firm or compensation consulting firm mutually acceptable to the Company and Executive (the "Determination Firm") Determination Firm, which shall provide detailed supporting calculations both to the Company Bank and Executive within 15 fifteen (15) business days of the receipt of notice from Executive that a Payment is due to be made, or such earlier time as is requested by the Company. Bank. All fees and expenses of the Determination Firm shall be borne solely by the Company. Any determination by Bank. The Bank and Executive shall provide the Determination Firm shall be binding upon the Company with such information and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by documents as the Determination Firm hereunder, it is possible that Payments hereunder will have been unnecessarily limited by may reasonably request in order to make a determination under this Section 10. ("Underpayment"), consistent with the calculations required to be made hereunder. The Determination Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment Firm's determinations shall be promptly paid by final and binding on the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code, but no later than March 15 of the year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. 14 (c) In the event that the provisions of Code Section 280G Bank and 4999 or any successor provisions are repealed without succession, this Section 10 shall be of no further force or effect. Executive. View More
Limitation of Benefits. (a) Notwithstanding anything in this Agreement a.If any of the payments or benefits received or to the contrary, in the event it shall be determined that received by Executive (including, without limitation, any benefit, payment or distribution by the Company to benefits received in connection with a Change in Control or for the benefit Executive's termination of Executive (whether payable or distributable employment, whether pursuant to the terms of this Agreement or any other plan, arrangement... or agreement, or otherwise) constitute "parachute payments" within the meaning of Section 280G of the Code (such benefits, parachute payments or distributions are hereinafter collectively referred to herein as the "Payments") and would, if paid, but for this Section 10, be subject to the excise tax (the "Excise Tax") imposed by under Section 4999 of the Code, Code (the "Excise Tax"), then, prior to making the Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to Executive of the Payments after payment of the Excise Tax to; (ii) the Net Benefit to Executive if the Payments are reduced to the extent necessary to avoid being subject to the Excise Tax. If the amount calculated under clause (i) above is less than the amount under clause (ii) above, then the aggregate Payments shall be reduced to the minimum extent necessary to ensure that no portion of the Payments is subject to the Excise Tax (the "Reduced Amount"). "Net Benefit" shall mean the present value of the Payments shall be reduced (but not below zero) to an amount expressed net of all federal, state, local, foreign income, employment and excise taxes, all determined in present value that maximizes the aggregate present value of the Payments without causing the Payments or any part thereof to be subject to the Excise Tax and therefore nondeductible by the Company because of accordance with Section 280G of the Code (the "Reduced Amount"). The and the regulations thereunder. Any reduction of the Payments due hereunder, if applicable, made pursuant to this Section 10 shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as in a manner determined by the Determination Firm (as defined below) that is consistent with the requirements of Section 409A, with the cash payments described in Section 10(b) below). For purposes of this Section 10, present value shall be determined Sections 6(a)(ii), 6(a)(iii) and 6(a)(iv) being reduced first, in accordance with Section 280G(d)(4) of reverse chronological order, so that the Code. For purposes of this Section 10, latest payments are the "Parachute Value" of a Payment means the present value as of the date of the change of control of the portion of such Payment that constitutes a "parachute payment" under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether first ones reduced. b.All calculations and to what extent the Excise Tax will apply to such Payment. (b) All determinations required to be made under this Section 10, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, Amount and the assumptions to be utilized in arriving at such determinations, shall be made by an independent, nationally recognized accounting firm or compensation consulting firm mutually acceptable to the Company and Executive (the "Determination Firm") which shall provide detailed supporting calculations both to the Company and Executive within 15 fifteen (15) business days of the receipt of notice from Executive that a Payment is due to be made, made or such earlier time as is requested by the Company. All fees and expenses of the Determination Firm shall be borne solely by the Company. CTT Employee. Any determination by the Determination Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments hereunder (x) will have been unnecessarily limited by this Section 10 ("Underpayment"), or (y) will Exhibit 10.1exceed the amount that should have been paid under this Section 10 (an "Overpayment"), consistent with the calculations required to be made hereunder. The Determination Firm shall determine the amount of the Underpayment or Overpayment that has occurred occurred, and (x) any such Underpayment shall be promptly paid by the Company CTT Employee to or for the benefit of Executive Executive, together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code, Code (the "Applicable Rate"), but no later than March 15 of the year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. 14 (c) In arises, and (y) any Overpayment shall be promptly repaid by Executive to CTT Employee, with interest at the Applicable Rate. c.In the event that the provisions of Code Section 280G and 4999 or any successor provisions are repealed without succession, this Section 10 shall be of no further force or effect. This Agreement shall inure to the benefit of, and be enforceable by, Executive's legal representatives.b.This Agreement shall be binding upon, and shall inure to the benefit of and be enforceable by, the Company and any successor or assigns of the Company, including any Person acquiring, directly or indirectly, all or substantially all of the business or assets of the Company by purchase, merger, consolidation, reorganization or otherwise.c.In the event of Executive's death or a judicial determination of his incapacity, references in this Agreement to Executive shall be deemed, where appropriate, to be references to his estate, beneficiary(ies), heir(s), executor(s), or other legal representative(s). View More
Limitation of Benefits. (a) Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by the Company Bank to or for the benefit of Executive (whether payable or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, payments or distributions are hereinafter referred to as "Payments") would, if paid, be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code, Internal Revenue Code of 1986..., as amended (the "Code"), then the aggregate present value of the Payments shall be reduced (but not below zero) to an amount expressed in present value that maximizes the aggregate present value of the Payments without causing the Payments or any part thereof to be subject to the Excise Tax and therefore nondeductible by the Company Bank because of Section 280G of the Code (the "Reduced Amount"). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as determined by the Determination Firm (as defined in Section 10(b) below). For purposes of this Section 10, 9, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes The reduction of this Section 10, the "Parachute Value" of Payments due hereunder, if applicable, shall be made in such a Payment means manner as to maximize the economic present value of all Payments actually made to Employee, determined by the Accounting Firm (as defined in Section 9(b) below) as of the date of the applicable change of in control using the discount rate required by Section 280G(d)(4) of the portion of such Payment that constitutes a "parachute payment" under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. Code. (b) All determinations required to be made under this Section 10, 9, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, shall be made by an independent, nationally recognized independent certified public accounting firm or compensation consulting firm mutually selected by the Bank and reasonably acceptable to the Company and Executive (the "Determination "Accounting Firm") which shall provide detailed supporting calculations both to the Company Bank and Executive within 15 business days of promptly after the receipt of notice from Executive that a Payment is due to be made, or such earlier time as is requested by the Company. made. All fees and expenses of the Determination Accounting Firm shall be borne solely by the Company. Bank. Any determination by the Determination Accounting Firm shall be binding upon the Company Bank and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Determination Accounting Firm hereunder, it is possible that Payments hereunder will have been unnecessarily limited by this Section 10 9 ("Underpayment"), consistent with the calculations required to be made hereunder. The Determination Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company Bank to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code, but no later than March 15 of the year after the year in which the - - Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. 14 (c) In the event that the provisions of Code Section 280G and 4999 or any successor provisions are repealed without succession, this Section 10 shall be of no further force or effect.View More
Limitation of Benefits. (a) Notwithstanding anything Anything in this Agreement to the contrary, contrary notwithstanding, in the event it shall be determined that any benefit, payment or distribution by the Company Company, Parent or any of their direct and/or indirect subsidiaries to or for the benefit of Executive Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) otherwise, but determined without regard to any additional payments required under th...is Section 18) (such benefits, payments or distributions are hereinafter referred to as "Payments") would, if paid, be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code, Code (the "Excise Tax"), then, prior to the making of any Payments to Employee, a calculation shall be made comparing (i) the net after-tax benefit to Employee of the Payments after payment by Employee of the Excise Tax, to (ii) the net after-tax benefit to Employee if the Payments 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 aggregate present value of the Payments shall be reduced (but not below zero) limited to an amount expressed in present value that maximizes the aggregate present value of the Payments without causing the Payments or any part thereof extent necessary to be avoid being subject to the Excise Tax and therefore nondeductible by the Company because of Section 280G of the Code (the "Reduced Amount"). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as determined by the Determination Firm (as defined in Section 10(b) 18(b) below). For purposes of this Section 10, 18, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes of this Section 10, 18, the "Parachute Value" of a Payment means the present value as of the date of the change of control of the portion of such Payment that constitutes a "parachute payment" under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. (b) All determinations required to be made under this Section 10, 18, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized used in arriving at such determinations, shall be made by an independent, nationally recognized accounting firm or compensation consulting firm mutually acceptable to the Company and Executive Employee (the "Determination Firm") which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from Executive that a Payment is due to be made, or such earlier time as is requested by the Company. Employee. All fees and expenses of the Determination Firm shall be borne solely by the Company. Any determination by the Determination Firm shall be binding upon the Company and Executive. Employee. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments hereunder will have been unnecessarily limited by this Section 10 18 ("Underpayment"), consistent with the calculations required to be made hereunder. The Determination Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code, Employee, but no later than March 15 of the year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. 14 (c) In 16 19. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit Employee's continuing or future participation in any employee benefit plan, program, policy or practice provided by the event Company and for which Employee may qualify, except as specifically provided herein. Amounts that are vested benefits or which Employee is otherwise entitled to receive under any plan, policy, practice or program of the provisions Company at or subsequent to the date of Code Section 280G and 4999 or any successor provisions are repealed without succession, this Section 10 termination of Employment shall be payable in accordance with such plan, policy, practice or program except as explicitly modified by this Agreement. For the avoidance of doubt, no further force provision of this Agreement is meant to modify or effect. limit Employee's right to receive his vested supplemental executive retirement plan benefits, if any, and to exercise his vested options, if any, in accordance with the terms of the applicable plan documents, related agreements and operative prior elections. View More
Limitation of Benefits. (a) Notwithstanding anything Anything in this Agreement to the contrary, contrary notwithstanding, in the event it shall be determined that any benefit, payment or distribution by the Company or any of its direct and/or indirect subsidiaries to or for the benefit of Executive Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) otherwise, but determined without regard to any additional payments required under this Section 18) (su...ch benefits, payments or distributions are hereinafter referred to as "Payments") would, if paid, be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code, Code (the "Excise Tax"), then, prior to the making of any Payments to Employee, a calculation shall be made comparing (i) the net after-tax benefit to Employee of the Payments after payment by Employee of the Excise Tax, to (ii) the net after-tax benefit to Employee if the Payments 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 aggregate present value of the Payments shall be reduced (but not below zero) limited to an amount expressed in present value that maximizes the aggregate present value of the Payments without causing the Payments or any part thereof extent necessary to be avoid being subject to the Excise Tax and therefore nondeductible by the Company because of Section 280G of the Code (the "Reduced Amount"). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as determined by the Determination Firm (as defined in Section 10(b) 18(b) below). For purposes of this Section 10, 18, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes of this Section 10, 18, the "Parachute Value" of a Payment means the present value as of the date of the change of control of the portion of such Payment that constitutes a "parachute payment" under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. (b) All determinations required to be made under this Section 10, 18, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized used in arriving at such determinations, shall be made by an independent, nationally recognized accounting firm or compensation consulting firm mutually acceptable to the Company and Executive Employee (the "Determination Firm") which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from Executive that a Payment is due to be made, or such earlier time as is requested by the Company. Employee. All fees and expenses of the Determination Firm shall be borne solely by the Company. Any determination by the Determination Firm shall be binding upon the Company and Executive. Employee. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments hereunder will have been unnecessarily limited by this Section 10 18 ("Underpayment"), consistent with the calculations required to be made hereunder. The Determination Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code, Employee, but no later than March 15 of the year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. 14 (c) In 19. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit Employee's continuing or future participation in any employee benefit plan, program, policy or practice provided by the event Company and for which Employee may qualify, except as specifically provided herein. Amounts that are vested benefits or which Employee is otherwise entitled to receive under any plan, policy, practice or program of the provisions Company at or subsequent to the date of Code Section 280G and 4999 or any successor provisions are repealed without succession, this Section 10 termination of the Employment shall be payable in accordance with such plan, policy, practice or program except as explicitly modified by this Agreement. For the avoidance of doubt, no further force provision of this Agreement is meant to modify or effect. limit Employee's right to receive his vested supplemental executive retirement plan benefits, if any, and to exercise his vested options, if any, in accordance with the terms of the applicable plan documents, related agreements and operative prior elections. View More
Limitation of Benefits. (a) Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by the Company Southside to or for the benefit of Executive Employee (whether payable or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, payments or distributions are hereinafter referred to as "Payments") would, if paid, be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code, then the aggreg...ate present value of the Payments shall be reduced (but not below zero) to an amount expressed in present value that maximizes the aggregate present value of the Payments without causing the Payments or any part thereof to be subject to the Excise Tax and therefore nondeductible by the Company Southside because of Section 280G of the Code (the "Reduced Amount"). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as determined by the Determination Firm (as defined in Section 10(b) 15(b) below). For purposes of this Section 10, 15, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes of this Section 10, 15, the "Parachute Value" of a Payment means the present value as of the date of the change of control of the portion of such Payment that constitutes a "parachute payment" under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. (b) All determinations required to be made under this Section 10, 15, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, shall be made by an independent, nationally recognized accounting firm or compensation consulting firm mutually acceptable to the Company Southside and Executive Employee (the "Determination Firm") which shall provide detailed supporting calculations both to the Company Southside and Executive Employee within 15 business days of the receipt of notice from Executive Employee that a Payment is due to be made, or such earlier time as is requested by the Company. Southside. All fees and expenses of the Determination Firm shall be borne solely by the Company. Southside. Any determination by the Determination Firm shall be binding upon the Company Southside and Executive. Employee. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments hereunder will have been unnecessarily limited by this Section 10 15 ("Underpayment"), consistent with the calculations required to be made hereunder. The Determination Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company Southside to or for the benefit of Executive Employee together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code, but no later than March 15 of the year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. 14 (c) In the event that the provisions of Code Section 280G and 4999 or any successor provisions are repealed without succession, this Section 10 shall be of no further force or effect.View More
Limitation of Benefits. (a) Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by the Company Bank to or for the benefit of Executive (whether payable or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, payments or distributions are hereinafter referred to as "Payments") would, if paid, be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code, Internal Revenue Code of 1986..., as amended (the "Code"), then prior to the aggregate present value making of any Payments to Executive, a calculation shall be made comparing (i) the net after-tax benefit to Executive of the Payments after payment by Executive of the Excise Tax, to (ii) the net after-tax benefit to Executive if the Payments 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 Payments shall be reduced (but not below zero) limited to an amount expressed in present value that maximizes the aggregate present value of the Payments without causing the Payments or any part thereof extent necessary to be avoid being subject to the Excise Tax and therefore nondeductible by the Company because of Section 280G of the Code (the "Reduced Amount"). The reduction of the Payments due hereunder, Payments, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value (as defined below) to actual present value of such Payments as of the date of the applicable change of control, as determined by the Determination Firm (as defined in Section 10(b) below). For purposes of this Section 10, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes of this Section 10, the "Parachute Value" of a Payment means the present value as of the date of the applicable change of control of the portion of such Payment that constitutes a "parachute payment" under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. (b) All determinations required to be made under this Section 10, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, shall be made by an independent, nationally recognized independent certified public accounting firm or compensation consulting firm mutually selected by the Bank and reasonably acceptable to the Company and Executive (the "Determination Firm") which shall provide detailed supporting calculations both to the Company Bank and Executive within 15 business days of the receipt of notice from Executive that a Payment is due to be made, or such earlier time as is requested by the Company. Executive. All fees and expenses of the Determination Firm shall be borne solely by the Company. Bank. Any determination by the Determination Firm shall be binding upon the Company Bank and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments hereunder will have been unnecessarily limited by this Section 10 ("Underpayment"), consistent with the calculations required to be made hereunder. The Determination Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company Bank to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code, Executive, but no later than March 15 of the year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. 14 (c) In the event that the provisions of Code Section 280G and 4999 or any successor provisions are repealed without succession, this Section 10 shall be of no further force or effect.View More
Limitation of Benefits. (a) Notwithstanding anything Anything in this Agreement to the contrary, contrary notwithstanding, in the event it shall be determined that any benefit, payment or distribution by the Company Company, Parent or any of their direct and/or indirect subsidiaries to or for the benefit of Executive Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) otherwise, but determined without regard to any additional payments required under th...is Section 18) (such benefits, payments or distributions are hereinafter referred to as "Payments") would, if paid, be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code, Code (the "Excise Tax"), then, prior to the making of any Payments to Employee, a calculation shall be made comparing (i) the net after-tax benefit to Employee of the Payments after payment by Employee of the Excise Tax, to (ii) the net after-tax benefit to Employee if the Payments 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 aggregate present value of the Payments shall be reduced (but not below zero) limited to an amount expressed in present value that maximizes the aggregate present value of the Payments without causing the Payments or any part thereof extent necessary to be avoid being subject to the Excise Tax and therefore nondeductible by the Company because of Section 280G of the Code (the "Reduced Amount"). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as determined by the Determination Firm (as defined in Section 10(b) 18(b) below). For purposes of this Section 10, 18, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes of this Section 10, 18, the "Parachute Value" of a Payment means the present value as of the date of the change of control of the portion of such Payment that constitutes a "parachute payment" under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. (b) All determinations required to be made under this Section 10, 18, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized used in arriving at such determinations, shall be made by an independent, nationally recognized accounting firm or compensation consulting firm mutually acceptable to the Company and Executive Employee (the "Determination Firm") which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from Executive that a Payment is due to be made, or such earlier time as is requested by the Company. Employee. All fees and expenses of the Determination Firm shall be borne solely by the Company. Any determination by the Determination Firm shall be binding upon the Company and Executive. Employee. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments hereunder will have been unnecessarily limited by this Section 10 18 ("Underpayment"), consistent with the calculations required to be made hereunder. The Determination Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code, Employee, but no later than March 15 of the year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. 14 (c) In the event that the provisions of Code Section 280G and 4999 or any successor provisions are repealed without succession, this Section 10 shall be of no further force or effect.View More
Limitation of Benefits. (a) Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by the Company Bank to or for the benefit of Executive (whether payable or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, payments or distributions are hereinafter referred to as "Payments") would, if paid, be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code, then the aggregate present va...lue of the Payments shall be reduced (but not below zero) to an amount expressed in present value that maximizes the aggregate present value of the Payments without causing the Payments or any part thereof to be subject to the Excise Tax and therefore nondeductible by the Company Bank because of Section 280G of the Code (the "Reduced Amount"). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as determined by an independent, nationally recognized accounting firm or compensation consulting firm mutually acceptable to the Determination Firm (as defined in Section 10(b) below). Bank and Executive (the "Determination Firm"). For purposes of this Section 10, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes of this Section 10, the "Parachute Value" of a Payment means the present value as of the date of the change of control of the portion of such Payment that constitutes a "parachute payment" under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. (b) All determinations required to be made under this Section 10, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, shall be made by an independent, nationally recognized accounting firm or compensation consulting firm mutually acceptable to the Company and Executive (the "Determination Firm") Determination Firm, which shall provide detailed supporting calculations both to the Company Bank and Executive within 15 business days of the receipt of notice from Executive that a Payment is due to be made, or such earlier time as is requested by the Company. Bank. All fees and expenses of the Determination Firm shall be borne solely by the Company. Any determination by the Determination Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments hereunder will have been unnecessarily limited by this Section 10 ("Underpayment"), consistent with the calculations required to be made hereunder. The Determination Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code, but no later than March 15 of the year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. 14 (c) In the event that the provisions of Code Section 280G and 4999 or any successor provisions are repealed without succession, this Section 10 shall be of no further force or effect. Bank. View More
Limitation of Benefits. (a) Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by the Company to or for the benefit of Executive -8- Employee (whether payable or distributable pursuant to the terms of this Agreement or otherwise) (such benefits, payments or distributions are hereinafter referred to as "Payments") would, if paid, be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code, then the aggregate pr...esent value of the Payments shall be reduced (but not below zero) to an amount expressed in present value that maximizes the aggregate present value of the Payments without causing the Payments or any part thereof to be subject to the Excise Tax and therefore nondeductible by the Company because of Section 280G of the Code (the "Reduced Amount"). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as determined by the Determination Firm (as defined in Section 10(b) below). For purposes of this Section 10, 11, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes The reduction of this Section 10, the "Parachute Value" of Payments due hereunder, if applicable, shall be made in such a Payment means manner as to maximize the economic present value of all Payments actually made to Employee, determined by the Determination Firm (as defined in Section 11(b) below) as of the date of the applicable change of in control using the discount rate required by Section 280G(d)(4) of the portion of such Payment that constitutes a "parachute payment" under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. Code. (b) All determinations required to be made under this Section 10, 11, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, shall be made by an independent, nationally recognized accounting firm or compensation consulting firm mutually acceptable to the Company and Executive Employee (the "Determination Firm") which shall provide detailed supporting calculations both to the Company and Executive Employee within 15 business days of the receipt of notice from Executive Employee that a Payment is due to be made, or such earlier time as is requested by the Company. All fees and expenses of the Determination Firm shall be borne solely by the Company. Any determination by the Determination Firm shall be binding upon the Company and Executive. Employee. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments hereunder will have been unnecessarily limited by this Section 10 11 ("Underpayment"), consistent with the calculations required to be made hereunder. The Determination Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive Employee together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code, but no later than March 15 December 31 of the year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. 14 exist. (c) In the event that the provisions of Code Section 280G and 4999 or any successor provisions are repealed without succession, this Section 10 11 shall be of no further force or effect. View More
