Common use of RESTRICTIONS UPON FUNDING Clause in Contracts

RESTRICTIONS UPON FUNDING. (a) The Bank shall have no obligation to set aside, earmark or entrust any fund or money with which to pay its obligations under this Agreement. The Executive, his beneficiaries or any successor in interest to him shall be and remain simply a general creditor of the Bank in the same manner as any other creditor having a general claim for matured and unpaid compensation. (b) Subject to subsection (d) hereof, the Bank reserves the absolute right in its sole discretion to either fund the obligations undertaken by this Agreement or to refrain from funding the same and to determine the extent, nature, and method of such funding. Should the Bank elect to fund this Agreement, in whole or in part, through the purchase of life insurance, mutual funds, disability policies or annuities, the Bank reserves the absolute right, in its sole discretion, to terminate such funding at any time, in whole or in part. At no time shall Executive be deemed to have any lien nor right, title or interest in or to any specific funding investment or to any assets of the Bank. (c) If Bank elects to invest in a life insurance, disability or annuity policy upon the life of Executive, then Executive shall assist the Bank by freely submitting to a physical exam and supplying such additional information necessary to obtain such insurance or annuities. (d) Not later than ten business days before the closing date of a Change in Control, the Bank shall -- (i) deposit in a grantor trust (the "Trust") that is designed in accordance with Revenue Procedure 92-64 and has a trustee independent of the Bank and the Company an amount equal to the Change-in-Control Account Value, unless the Executive has previously provided a written release of any claims under this Agreement, and (ii) provide the trustee of the Trust with a written direction to hold said amount and any investment return thereon in a segregated account for the benefit of the Executive, and to follow the payment schedule to be provided by the Executive, based on this Agreement and the Executive's Election Form, as to the payment of amounts from the Trust. Upon the Trust's final payment of all amounts due under this Section (d) of Article VIII, the trustee of the Trust shall pay to the Bank the entire balance remaining in the segregated account maintained for the benefit of the Executive. The Executive shall thereafter have no further interest in the Trust.

RESTRICTIONS UPON FUNDING. (a) The 4.1 Neither the Company nor the Bank shall have no any obligation to set aside, earmark or entrust any fund or money with which to pay its obligations under this Agreement. The Executive, his beneficiaries Beneficiary or any successor in successor-in-interest to him shall be and remain simply a general creditor of the Company and the Bank in the same manner as any other creditor having a general claim for matured and unpaid compensationunsecured claim. (b) Subject to subsection (d) hereof4.2 For purposes of the Code, the Company and the Bank reserves the absolute right in its sole discretion to either fund the obligations undertaken by intend this Agreement or to refrain from funding be an unfunded, unsecured promise to pay on the same part of the Company and/or the Bank. For purposes of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) the Company and to determine the extent, nature, and method of such funding. Should the Bank elect intend that this Agreement not be subject to fund ERISA. If this AgreementAgreement is deemed subject to ERISA, in whole or in part, through it is intended to be an unfunded arrangement for the purchase benefit of life insurance, mutual funds, disability policies or annuities, the Bank reserves the absolute right, in its sole discretion, to terminate such funding at any time, in whole or in part. At no time shall Executive be deemed to have any lien nor right, title or interest in or to any specific funding investment or to any assets a select member of management who is a highly compensated employee of the Company and/or the Bank, for the purpose of qualifying this Agreement for the “top hat” plan exception under sections 201(2), 301(a)(3) and 401(a)(1) of ERISA. (c) 4.3 If the Company or the Bank elects to invest in a life insurance, disability or annuity policy upon the life of Executive, then Executive shall assist the Company and/or the Bank by freely submitting to a physical exam examination and supplying such additional information necessary to obtain such insurance or annuities. (d) Not later than ten business days before 4.4 Notwithstanding any provision of this Agreement to the closing date contrary, neither the Company nor the Bank shall be required to pay any benefit under this Agreement if, upon the advice of a Change counsel, the Company or the Bank determines in Controlgood faith that the payment of such benefit would be prohibited by 12 C.F.R. Part 359 or any successor regulations regarding employee compensation promulgated by any regulatory agency having jurisdiction over the Company, the Bank or their affiliates. To the extent possible, such benefit payment shall -- be proportionately reduced to allow payment within the fullest extent permissible under applicable law. Executive shall have the right to have any determination made pursuant to this Section 4.5 reviewed by independent counsel for Executive, prior to the reduction of any amount payable pursuant to the terms of this Agreement. Any review by independent counsel pursuant to this Section 4.5 must be completed within five (i5) deposit in a grantor trust (the "Trust") that is designed in accordance with Revenue Procedure 92-64 and has a trustee independent business days of the Bank and Company and/or the Company an amount equal to the Change-in-Control Account Value, unless the Executive has previously provided a written release of any claims under this Agreement, and (ii) provide the trustee of the Trust with a written direction to hold said amount and any investment return thereon in a segregated account for the benefit of the ExecutiveBank’s determination made pursuant hereto, and all amounts payable pursuant to follow the payment schedule to be provided by the Executive, based on this Agreement and the Executive's Election Form, as to the payment of amounts from the Trust. Upon the Trust's final payment of all amounts due under this Section (d) of Article VIII, the trustee of the Trust shall pay to the Bank the entire balance remaining in the segregated account maintained be suspended for the benefit of the Executive. The Executive shall thereafter have no further interest in the Trustsuch period.

RESTRICTIONS UPON FUNDING. (a) The Bank shall have no obligation to set aside, earmark or entrust any fund or money with which to pay its obligations under this Agreement. The Executive, his beneficiaries or any successor in interest to him shall be and remain simply a general creditor of the Bank in the same manner as any other creditor having a general claim for matured and unpaid compensation. (b) Subject to subsection (d) hereof, the Bank reserves the absolute right in its sole discretion to either fund the obligations undertaken by this Agreement or to refrain from funding the same and to determine the extent, nature, and method of such funding. Should the Bank elect to fund this Agreement, in whole or in part, through the purchase of life insurance, mutual funds, disability policies or annuities, the Bank reserves the absolute right, in its sole discretion, to terminate such funding at any time, in whole or in part. At no time shall Executive be deemed to have any lien nor right, title or interest in or to any specific funding investment or to any assets of the Bank. (c) If Bank elects to invest in a life insurance, disability or annuity policy upon the life of Executive, then Executive shall assist the Bank by freely submitting to a physical exam and supplying such additional information necessary to obtain such insurance or annuities. (d) Not later than ten business days before the closing date of a Change in Control, the Bank shall -- (i) deposit Deposit in a grantor trust (the "Trust") that is designed in accordance with Revenue Procedure 92-64 and has a trustee independent of the Bank and the Company an amount equal to the Change-in-Control Account Value, unless the Executive has previously provided a written release of any claims under this Agreement, and (ii) provide the trustee of the Trust with a written direction to hold said amount and any investment return thereon in a segregated account for the benefit of the Executive, and to follow the payment schedule to be provided by the Executive, based on this Agreement and the Executive's Election Form, as to the payment of amounts from the Trust. Upon the Trust's final payment of all amounts due under this Section (d) of Article VIII, the trustee of the Trust shall pay to the Bank the entire balance remaining in the segregated account maintained for the benefit of the Executive. The Executive shall thereafter have no further interest in the Trust.