Compliance with Certain Restrictions Contract Clauses (26)

Compliance with Certain Restrictions. 10.1 Section 280G. 10.1.1 For purposes of this Agreement, the following terms are defined as follows: (a) "Additional 280G Payments" means any distributions in the nature of compensation by any Bank Entity to or for the benefit of Executive (including, but not limited to, the value of acceleration in vesting in restricted stock, options or any other stock-based compensation), whether or not paid or payable or distributed or distributable pursuant to this Agreement, which is required to be taken ...into consideration in applying Section 280G(b)(2)(A) of the Code; (b) "Parachute Payment" is defined as set forth in Section 280G(b)(2) of the Code; and (c) "Total Change in Control Payments" means the total amount of the Change Payment together with all Additional 280G Payments that are required to be paid because of a Change in Control. 10.1.2 Notwithstanding anything in this Agreement to the contrary, if the Determining Firm determines that any portion of the Total Change in Control Payments would otherwise constitute a Parachute Payment, the amount payable to Executive shall automatically be reduced by the smallest amount necessary so that no portion of the Total Change in Control Payments will be a Parachute Payment. . If Total Change in Control Payments are to be paid in other than a lump sum, such reduction shall be applied in such order as the Executive designates, subject to the approval of Bank, not to be unreasonably withheld, conditioned or delayed. If, despite the foregoing sentence, a payment shall be made to Executive that would constitute a Parachute Payment, Executive shall have no right to retain such payment and, immediately upon being informed of the impropriety of such payment, Executive shall return such payment to the Bank or other Bank Entity that was the payer thereof, together with interest at the applicable federal rate determined pursuant to Section 1274(d) of the Code. 10.2 Section 409A. 10.2.1 It is the intention of the parties hereto that this Agreement and the payments provided for hereunder shall not be subject to, or shall be in accordance with, Section 409A, and thus avoid the imposition of any tax and interest on Executive pursuant to Section 409A(a)(1)(B) of the Code, and this Agreement shall be interpreted and construed consistent with this intent. Executive acknowledges and agrees that he shall be solely responsible for the payment of any tax or penalty which may be imposed or to which he may become subject as a result of the payment of any amounts under this Agreement. 10.2.2 Notwithstanding any provision of this Agreement to the contrary, if Executive is a "specified employee" at the time of Executive's "separation from service", any payment of "nonqualified deferred compensation" (in each case as determined pursuant to Section 409A) that is otherwise to be paid to Executive within six (6) months following Executive's separation from service, then to the extent that such payment would otherwise be subject to interest and additional tax under Section 409A(a)(1)(B) of the Code, such payment shall be delayed and shall be paid on the first business day of the seventh calendar month following Executive's separation from service, or, if earlier, upon Executive's death. Any deferral of payments pursuant to the foregoing sentence shall have no effect on any payments that are scheduled to be paid more than six (6) months after the date of separation from service. 10.2.3 The parties hereto agree that they shall take such actions as may be necessary and permissible under applicable law, regulation and guidance to amend or revise this Agreement in order to ensure that Section 409A(a)(1)(B) does not impose additional tax and interest on payments made pursuant to this Agreement. View More