Common use of Compliance With Notice 2006-79 and 2007-86 Clause in Contracts

Compliance With Notice 2006-79 and 2007-86. As this is a Director Plan, the six month delay in payment to a key employee of a publicly traded company is unnecessary. In the event, however, that such delay in payment is warranted under IRC 409A Notwithstanding the forgoing and/or any provision existing in this Agreement or any amendment thereto, it is the intent of the Bank and the Director that any payment or benefit provided pursuant to this Agreement shall be made and paid in a manner, at a time and in a form which complies with the applicable requirements of IRC Section 409A, in order to avoid any unfavorable tax consequences resulting from any such failure to comply. Furthermore, for the purposes of this Agreement, IRC Section 409A shall be read to include any related or relevant IRS Notices (including but not limited to Notice 2006-79). In accordance with the current restrictions on payouts of deferred compensation, and with respect to any plan amendment or election in 2008, such amendment or election may not act as to accelerate any payments or cause any payment to be made in 2008 that would not otherwise be payable in 2008. Furthermore, this restriction also applies to payments following a separation from service, and similarly applies to elections/amendments and payments made and to be made in 2008. Therefore, an election or amendment to change a time and form of payment made on or after January 1, 2008 and on or before December 31, 2008, may apply only to amounts that would not otherwise be payable in 2008 and may not cause an amount to be paid in 2008 that would not otherwise be payable in 2008. (For example, where an amount would otherwise be payable upon an event, such as a separation from service, an election in 2008 cannot change the amount that would be payable in 2008 if the service provider separated from service in 2008).