Code Sections 409A and 280G. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s “Separation from Service” (as defined below), the Bank determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s Separation from Service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s Separation from Service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. Any such delayed cash payment shall earn interest at an annual rate equal to the applicable federal short-term rate published by the Internal Revenue Service for the month in which the date of Separation from Service occurs, from such date of Separation from Service until the payment date. (b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s Separation from Service.” For purposes of this Agreement, a “Separation from Service” shall have occurred if the Bank and the Executive reasonably anticipate that either no further services will be performed by the Executive after the date of termination (whether as an employee or as an independent contractor) or the level of further services performed is less than fifty (50) percent of the average level of bona fide services in the thirty-six (36) months immediately preceding the termination. For all purposes hereunder, the definition of Separation from Service shall be interpreted consistent with Treasury Regulation Section 1.409A-1(h). (c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (d) The parties intend that the severance payments and other compensation provided for herein are reasonable compensation for Executive’s services to the Bank and shall not constitute “excess parachute payments” within the meaning of Section 280G of the Code. If the Bank’s independent accounting firm or independent tax counsel appointed by the Bank (“Tax Counsel”) determine that any or the aggregate value (as determined pursuant to Section 280G of the Code) of all payments, distributions, accelerations of vesting, awards and provisions of benefits by the Bank to or for the benefit of the Executive (whether paid or payable, distributed or distributable, accelerated, awarded or provided pursuant to the terms of this Agreement or otherwise), (a “Payment”) would constitute an excess parachute payment and be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), such Payment shall be reduced to the least extent necessary so that no portion of the Payment shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by the Executive as a result of such reduction will exceed the net after-tax benefit that would have been received by the Executive if no such reduction were made. The Payment shall be reduced by the Bank pursuant to the foregoing sentence in a manner that Tax Counsel determines maximizes the Executive’s economic position. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code, and where Tax Counsel determines that two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. If, however, such Payment is not reduced as described above, then such Payment shall be paid in full to the Executive and the Executive shall be responsible for payment of any Excise Taxes relating to the Payment. All calculations and determinations under this Section 8 shall be made by Tax Counsel whose determinations shall be conclusive and binding on the Bank and the Executive for all purposes. For purposes of making the calculations and determinations required by this Section 8, Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Bank and the Executive shall furnish Tax Counsel with such information and documents as Tax Counsel may reasonably request in order to make its determinations under this Section. The Bank shall bear all costs Tax Counsel may reasonably incur in connection with its services. In connection with making determinations under this Section, Tax Counsel shall take into account the value of any reasonable compensation for services to be rendered by the Executive before or after the Change in Control, including without limitation, the Executive’s agreement to refrain from performing services pursuant to a covenant not to compete or similar covenant, and the Bank shall cooperate in good faith in connection with any such valuations and reasonable compensation positions. (e) At such time as the Bank and the Company are not in “troubled condition” as defined in 12 C.F.R. § 359.1(f)(1)(ii), the following paragraph in this Section 8(e) shall automatically and without further action be substituted for Section 8(d): “The parties intend that the severance payments and other compensation provided for herein are reasonable compensation for Executive’s services to the Bank and shall not constitute “excess parachute payments” within the meaning of Section 280G (or any successor provision) of the Code. If the Bank’s independent accounting firm or independent tax counsel appointed by the Bank (“Tax Counsel”) determines that any or the aggregate value (as determined pursuant to Section 280G of the Code) of all payments, distributions, accelerations of vesting, awards and provisions of benefits by the Bank to or for the benefit of the Executive (whether paid or payable, distributed or distributable, accelerated, awarded or provided pursuant to the terms of this Agreement or otherwise), (a “Payment”) would constitute an excess parachute payment and be subject to the excise tax imposed by Section 4999 (or any successor provision) of the Code (the “Excise Tax”), then the Bank shall pay the Executive an additional payment (a “Gross-Up Payment”) such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes, including any Excise Tax imposed upon the Gross-Up Payment), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment. The intent of the parties is that the Bank shall be solely responsible for, and shall pay, any Excise Tax on the Payments and Gross-Up Payment and any income and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-Up Payment payable hereunder. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made
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Code Sections 409A and 280G. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s “Separation from Service” (as defined below), the Bank determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s Separation from Service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s Separation from Service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. Any such delayed cash payment shall earn interest at an annual rate equal to the applicable federal short-term rate published by the Internal Revenue Service for the month in which the date of Separation from Service occurs, from such date of Separation from Service until the payment date.
(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive’s termination of employment, then such payments or benefits shall be payable only upon the Executive’s Separation from Service.” For purposes of this Agreement, a “Separation from Service” shall have occurred if the Bank and the Executive reasonably anticipate that either no further services will be performed by the Executive after the date of termination (whether as an employee or as an independent contractor) or the level of further services performed is less than fifty (50) percent of the average level of bona fide services in the thirty-six (36) months immediately preceding the termination. For all purposes hereunder, the definition of Separation from Service shall be interpreted consistent with Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
(d) The parties intend that the severance payments and other compensation provided for herein are reasonable compensation for Executive’s services to the Bank and shall not constitute “excess parachute payments” within the meaning of Section 280G of the Code. If the Bank’s independent accounting firm or independent tax counsel appointed by the Bank (“Tax Counsel”) determine that any or the aggregate value (as determined pursuant to Section 280G of the Code) of all payments, distributions, accelerations of vesting, awards and provisions of benefits by the Bank to or for the benefit of the Executive (whether paid or payable, distributed or distributable, accelerated, awarded or provided pursuant to the terms of this Agreement or otherwise), (a “Payment”) would constitute an excess parachute payment and be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), such Payment shall be reduced to the least extent necessary so that no portion of the Payment shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by the Executive as a result of such reduction will exceed the net after-tax benefit that would have been received by the Executive if no such reduction were made. The Payment shall be reduced by the Bank pursuant to the foregoing sentence in a manner that Tax Counsel determines maximizes the Executive’s economic position. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code, and where Tax Counsel determines that two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. If, however, such Payment is not reduced as described above, then such Payment shall be paid in full to the Executive and the Executive shall be responsible for payment of any Excise Taxes relating to the Payment. All calculations and determinations under this Section 8 shall be made by Tax Counsel whose determinations shall be conclusive and binding on the Bank and the Executive for all purposes. For purposes of making the calculations and determinations required by this Section 8, Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Bank and the Executive shall furnish Tax Counsel with such information and documents as Tax Counsel may reasonably request in order to make its determinations under this Section. The Bank shall bear all costs Tax Counsel may reasonably incur in connection with its services. In connection with making determinations under this Section, Tax Counsel shall take into account the value of any reasonable compensation for services to be rendered by the Executive before or after the Change in Control, including without limitation, the Executive’s agreement to refrain from performing services pursuant to a covenant not to compete or similar covenant, and the Bank shall cooperate in good faith in connection with any such valuations and reasonable compensation positions.
(e) At such time as the Bank and the Company are not in “troubled condition” as defined in 12 C.F.R. § 359.1(f)(1)(ii), the following paragraph in this Section 8(e) shall automatically and without further action be substituted for Section 8(d): “The parties intend that the severance payments and other compensation provided for herein are reasonable compensation for Executive’s services to the Bank and shall not constitute “excess parachute payments” within the meaning of Section 280G (or any successor provision) of the Code. If the Bank’s independent accounting firm or independent tax counsel appointed by the Bank (“Tax Counsel”) determines that any or the aggregate value (as determined pursuant to Section 280G of the Code) of all payments, distributions, accelerations of vesting, awards and provisions of benefits by the Bank to or for the benefit of the Executive (whether paid or payable, distributed or distributable, accelerated, awarded or provided pursuant to the terms of this Agreement or otherwise), (a “Payment”) would constitute an excess parachute payment and be subject to the excise tax imposed by Section 4999 (or any successor provision) of the Code (the “Excise Tax”), then the Bank shall pay the Executive an additional payment (a “Gross-Up Payment”) such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes, including any Excise Tax imposed upon the Gross-Up Payment), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment. The intent of the parties is that the Bank shall be solely responsible for, and shall pay, any Excise Tax on the Payments and Gross-Up Payment and any income and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-Up Payment payable hereunder. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made.
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Code Sections 409A and 280G. (a) Anything It is intended that any amounts and benefits payable under this Agreement, including the Options and RSUs, will be exempt from or comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and treasury regulations relating thereto, so as not to subject Employee to the payment of any interest and tax penalty which may be imposed under Section 409A of the Code, and this Agreement shall be interpreted and construed accordingly, provided, however, that the Company and its affiliates shall not be responsible for any such interest and tax penalties. All references in this Agreement to Employee’s termination of employment shall mean a separation from service within the contrary notwithstandingmeaning of Section 409A of the Code. The timing of the payments or benefits provided herein may be modified to so comply with Section 409A of the Code. Any reimbursement payable to Employee pursuant to this Agreement shall be conditioned on the submission by Employee of all expense reports reasonably required by the Company under any applicable expense reimbursement policy, and shall be paid to Employee in accordance with Company practices following receipt of such expense reports (or invoices), but in no event later than the last day of the calendar year following the calendar year in which Employee incurred the reimbursable expense. Notwithstanding any other provision in this Agreement, if at on the time date of the ExecutiveEmployee’s “Separation separation from Service” service (as defined below), in Section 409A of the Bank determines that Code) (i) the Executive Company or any member of its controlled group under Section 414(b) or (c) of the Code is a publicly traded corporation and (ii) Employee is a “specified employee,” within the meaning of as defined in Section 409A(a)(2)(B)(i) 409A of the Code, then to the extent any payment or benefit that the Executive becomes entitled to amount payable under this Agreement on account upon Employee’s separation from service constitutes the payment of nonqualified deferred compensation, within the Executive’s Separation from Service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application meaning of Section 409A(a)(2)(B)(i) 409A of the Code, that under the terms of this Agreement would be payable prior to the six (6) month anniversary of Employee’s separation from service, such payment shall not be payable and such benefit shall not be provided delayed until the date that is the earlier to occur of (Ax) the first day of the month following the six months and one day after the Executive(6) month anniversary of Employee’s Separation separation from Service, service or (By) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. Any such delayed cash payment shall earn interest at an annual rate equal to the applicable federal short-term rate published by the Internal Revenue Service for the month in which the date of Separation from Service occurs, from such date of Separation from Service until the payment dateEmployee’s death.
(b) To Notwithstanding any other provision of this Agreement to the contrary, to the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A distribution of any type to or for the Employee by the Company (or by any affiliate of the CodeCompany, and to the extent that such payment any person or benefit is payable upon the Executive’s termination of employment, then such payments entity who acquires ownership or benefits shall be payable only upon the Executive’s Separation from Service.” For purposes of this Agreement, a “Separation from Service” shall have occurred if the Bank and the Executive reasonably anticipate that either no further services will be performed by the Executive after the date of termination (whether as an employee or as an independent contractor) or the level of further services performed is less than fifty (50) percent effective control of the average level Company or ownership of bona fide services in the thirty-six (36) months immediately preceding the termination. For all purposes hereunder, the definition of Separation from Service shall be interpreted consistent with Treasury Regulation Section 1.409A-1(h).
(c) The parties intend that this Agreement will be administered in accordance with Section 409A a substantial portion of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
Company’s assets (d) The parties intend that the severance payments and other compensation provided for herein are reasonable compensation for Executive’s services to the Bank and shall not constitute “excess parachute payments” within the meaning of Section 280G of the Code. If Code and the Bank’s independent accounting firm regulations thereunder)), or independent tax counsel appointed by the Bank (“Tax Counsel”) determine that any affiliate of such person or the aggregate value (as determined pursuant to Section 280G of the Code) of all paymentsentity, distributions, accelerations of vesting, awards and provisions of benefits by the Bank to or for the benefit of the Executive (whether paid or payable, payable or distributed or distributable, accelerated, awarded or provided distributable pursuant to the terms of this Agreement or otherwiseotherwise (the “Total Payments”), (a “Payment”) would constitute an excess parachute payment and is or will be subject to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), such Payment then the Total Payments shall be reduced to the least extent necessary so that no portion of the Payment shall be subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by the Executive as a result of such reduction will exceed the net after-tax benefit that would have been received by the Executive if no such reduction were made. The Payment shall be reduced by the Bank pursuant to the foregoing sentence in a manner that Tax Counsel determines maximizes the Executive’s economic position. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code, and where Tax Counsel determines that two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (but not below zero. If, however, such Payment is not reduced as described above, then such Payment shall be paid in full ) if and to the Executive and extent that a reduction in the Executive shall be responsible for payment of any Excise Taxes relating to Total Payments would result in the Payment. All calculations and determinations under this Section 8 shall be made by Tax Counsel whose determinations shall be conclusive and binding Employee retaining a larger amount, on the Bank and the Executive for all purposes. For purposes of making the calculations and determinations required by this Section 8, Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Bank and the Executive shall furnish Tax Counsel with such information and documents as Tax Counsel may reasonably request in order to make its determinations under this Section. The Bank shall bear all costs Tax Counsel may reasonably incur in connection with its services. In connection with making determinations under this Section, Tax Counsel shall take an after-tax basis (taking into account the value of any reasonable compensation for services to be rendered by the Executive before or after the Change in Controlfederal, including without limitation, the Executive’s agreement to refrain from performing services pursuant to a covenant not to compete or similar covenant, and the Bank shall cooperate in good faith in connection with any such valuations and reasonable compensation positions.
(e) At such time as the Bank and the Company are not in “troubled condition” as defined in 12 C.F.R. § 359.1(f)(1)(ii), the following paragraph in this Section 8(e) shall automatically and without further action be substituted for Section 8(d): “The parties intend that the severance payments and other compensation provided for herein are reasonable compensation for Executive’s services to the Bank and shall not constitute “excess parachute payments” within the meaning of Section 280G (or any successor provision) of the Code. If the Bank’s independent accounting firm or independent tax counsel appointed by the Bank (“Tax Counsel”) determines that any or the aggregate value (as determined pursuant to Section 280G of the Code) of all payments, distributions, accelerations of vesting, awards and provisions of benefits by the Bank to or for the benefit of the Executive (whether paid or payable, distributed or distributable, accelerated, awarded or provided pursuant to the terms of this Agreement or otherwise), (a “Payment”) would constitute an excess parachute payment and be subject to the excise tax imposed by Section 4999 (or any successor provision) of the Code (the “Excise Tax”), then the Bank shall pay the Executive an additional payment (a “Gross-Up Payment”) such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes, including any Excise Tax imposed upon the Gross-Up Payment), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment. The intent of the parties is that the Bank shall be solely responsible for, and shall pay, any Excise Tax on the Payments and Gross-Up Payment and any income and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-Up Payment payable hereunder. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at and the highest marginal rate Excise Tax), than if the Employee received the entire amount of taxation in such Total Payments. The determination of whether the state Total Payments shall be reduced and locality the amount of such reduction shall be determined by an accounting firm selected by the Executive’s domicile Employee and the Company, shall be paid for income tax purposes on by the date Company, and shall be final and binding upon the Gross-Up Payment is madeEmployee and the Company.
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