Common use of Other Provisions Relating to Termination Clause in Contracts

Other Provisions Relating to Termination. (a) Notwithstanding the termination of the Executive’s employment pursuant to any provision of this Agreement, the Parties shall be required to carry out any provisions of this Agreement which contemplate performance by them subsequent to such termination. In addition, no termination shall affect any liability or other obligation of either Party which shall have accrued prior to such termination, including, but not limited to, any liability, loss or damage on account of breach, subject to the limitation on damages set forth below. No termination of employment shall terminate the obligation of the Bank to make payments of any vested benefits provided hereunder or the obligations of the Executive under Sections 10, 11, and 12. (b) Notwithstanding anything herein to the contrary, the Executive acknowledges and agrees that the payment by the Bank of the Termination Compensation shall constitute liquidated damages for, and shall be the Executive’s sole and exclusive remedy for, (1) the termination of the Executive by the Bank Without Cause or (2) the occurrence of any fact or circumstance constituting Good Reason, including without limitation any breach of this Agreement by the Bank. The parties agree that it would be difficult or impossible to ascertain damages in the event of a breach by the Bank and, accordingly, the parties have, through negotiation of this Agreement, established liquidated damages which they agree are a fair estimate of damages and not a penalty. (c) It is the intention of the Parties that no payment be made or benefit provided to the Executive pursuant to this Agreement that would constitute an “excess parachute payment” within the meaning of Section 280G of the Code and any regulations thereunder, thereby resulting in a loss of an income tax deduction by the Bank or the Company, or the imposition of an excise tax on the Executive under Section 4999 of the Code. If the independent accountants serving as auditors for the Bank on the date of a Change of Control (or any other accounting firm designated by the Bank only because such determination by the auditors would be violative of auditor independence rules) determine that some or all of the payments or benefits scheduled under this Agreement, as well as any other payments or benefits on a Change of Control, would be nondeductible by the Bank or the Company under Section 280G of the Code, then the payments scheduled under this Agreement will be reduced to one dollar less than the maximum amount which may be paid without causing any such payment or benefit to be nondeductible. The determination made as to the reduction of benefits or payments required hereunder by the independent accountants shall be binding on the Parties. Any reduction of benefits or payments required to be made under this Section 8(c) will be taken pro rata in the following order: first from payments or benefits that are equity compensation and, if necessary, second from payments or benefits that are cash compensation. (d) Notwithstanding any other provision of this Agreement, no payments or benefits under this Agreement that are subject to Code Section 409A (as defined in Section 21) and that are to be paid upon the Executive’s termination of employment shall be paid or provided to the Executive until the Executive has experienced a “separation from service”, as described in Section 21(c). Any such payments or benefits shall also be subject to the delay provisions in Section 21(c), if applicable.

Other Provisions Relating to Termination. (a) Notwithstanding the termination of the Executive’s employment pursuant to any provision of this Agreement, the Parties shall be required to carry out any provisions of this Agreement which contemplate performance by them subsequent to such termination. In addition, no termination shall affect any liability or other obligation of either Party which shall have accrued prior to such termination, including, but not limited to, any liability, loss or damage on account of breach, subject to the limitation on damages set forth below. No termination of employment shall terminate the obligation of the Bank to make payments of any vested benefits provided hereunder or the obligations of the Executive under Sections 10, 11, and 12., (b) Notwithstanding anything herein to the contrary, the Executive acknowledges and agrees that the payment by the Bank Company of the Termination Compensation shall constitute liquidated damages for, and shall be the Executive’s sole and exclusive remedy for, (1) the termination of the Executive by the Bank Company Without Cause or (2) the occurrence of any fact or circumstance constituting Good Reason, including without limitation any breach of this Agreement by the BankCompany. The parties Parties agree that it would be difficult or impossible to ascertain damages in the event of a breach by the Bank Company and, accordingly, the parties Parties have, through negotiation of this Agreement, established liquidated damages which they agree are a fair estimate of damages and not a penalty. (c) It is the intention of the Parties that no payment be made or benefit provided to the Executive pursuant to this Agreement that would constitute an “excess parachute payment” within the meaning of Section 280G of the Code and any regulations thereunder, thereby resulting in a loss of an income tax deduction by the Bank or the Company, or the imposition of an excise tax on the Executive under Section 4999 of the Code. If the independent accountants serving as auditors for the Bank Company on the date of a Change of Control (or any other accounting firm designated by the Bank Company only because such determination by the auditors would be violative of auditor independence rules) determine that some or all of the payments or benefits scheduled under this Agreement, as well as any other payments or benefits on a Change of Control, would be nondeductible by the Bank or the Company under Section 280G of the Code, then the payments scheduled under this Agreement will be reduced to one dollar less than the maximum amount which may be paid without causing any such payment or benefit to be nondeductible. The determination made as to the reduction of benefits or payments required hereunder by the independent accountants shall be binding on the Parties. Any reduction of benefits or payments required to be made under this Section 8(c) will be taken pro rata in the following order: first from payments or benefits that are equity compensation and, if necessary, second from payments or benefits that are cash compensation. (d) Notwithstanding any other provision of this Agreement, no payments or benefits under this Agreement that are subject to Code Section 409A (as defined in Section 21) and that are to be paid upon the Executive’s termination of employment shall be paid or provided to the Executive until the Executive has experienced a “separation from service”, as described in Section 21(c). Any such payments or benefits shall also be subject to the delay provisions in Section 21(c), if applicable.

Other Provisions Relating to Termination. (a) Notwithstanding the termination of the Executive’s employment pursuant to any provision of this Agreement, the Parties shall be required to carry out any provisions of this Agreement which contemplate performance by them subsequent to such termination. In addition, no termination shall affect any liability or other obligation of either Party which shall have accrued prior to such termination, including, but not limited to, any liability, loss loss, or damage on account of breach, subject to the limitation on damages set forth below. No termination of employment shall terminate the obligation of the Bank to make payments of any vested benefits provided hereunder or the obligations of the Executive under Sections 10, 11, and 12. (b) Notwithstanding anything herein to the contrary, the Executive acknowledges and agrees that the payment by the Bank of the Termination Compensation shall constitute liquidated damages for, for and shall be the Executive’s sole and exclusive remedy for, (1) the termination of the Executive by the Bank Without Cause or (2) the occurrence of any fact or circumstance constituting Good Reason, including without limitation any breach of this Agreement by the Bank. The parties agree that it would be difficult or impossible to ascertain damages in the event of a breach by the Bank and, accordingly, the parties have, through negotiation of this Agreement, established liquidated damages which they agree are a fair estimate of damages and not a penalty. (c) It is the intention of the Parties that no payment be made made, or benefit provided to the Executive pursuant to this Agreement that would constitute an “excess parachute payment” within the meaning of Section 280G of the Code and any regulations thereunder, thereby resulting in a loss of an income tax deduction by the Bank or the Company, or the imposition of an excise tax on the Executive under Section 4999 of the Code. If the independent accountants serving as auditors for the Bank on the date of a Change of Control (or any other accounting firm designated by the Bank only because such determination by the auditors would be violative of auditor independence rules) determine that some or all of the payments or benefits scheduled under this Agreement, as well as any other payments or benefits on a Change of Control, would be nondeductible by the Bank or the Company under Section 280G of the Code, then the payments scheduled under this Agreement will be reduced to one dollar less than the maximum amount which may be paid without causing any such payment or benefit to be nondeductible. The determination made as to the reduction of benefits or payments required hereunder by the independent accountants shall be binding on the Parties. Any reduction of benefits or payments required to be made under this Section 8(c) will be taken pro rata in the following order: first from payments or benefits that are equity compensation and, if necessary, second from payments or benefits that are cash compensation. (d) Notwithstanding any other provision of this Agreement, no payments or benefits under this Agreement that are subject to Code Section 409A (as defined in Section 21) and that are to be paid upon the Executive’s termination of employment shall be paid or provided to the Executive until the Executive has experienced a “separation from service”, as described in Section 21(c20(c). Any such payments or benefits shall also be subject to the delay provisions in Section 21(c20(c), if applicable.