percent (85%) or more of the total gross fair market value of all of the assets of theCompany and the Bank immediately before such acquisition or acquisitions; provided, however,that transfers to the following entities or person(s) shall not be deemed to result in aChange of Control under this subsection (d):     (i) an entity that is controlled by the shareholders of the Company or the Bankimmediately after the transfer;     (ii) a shareholder (determined immediately before the asset transfer) of theCompany or the Bank in exchange for or with respect to its stock;     (iii) an entity, fifty percent (50%) or more of the total value or voting powerof which is owned, directly or indirectly, by the Company or the Bank;     (iv) a person, or more than one person acting as a group, that owns, directlyor indirectly, fifty percent (50%) or more of the total value or voting power of allthe outstanding stock of the Company or the Bank; or     (v) an entity, at least fifty percent (50%) of the total value or voting powerof which is owned, directly or indirectly, by a person described in the abovesubsection (d)(iv).Notwithstanding the foregoing, no Change of Control shall be deemed to have occurred forpurposes of this Agreement by reason of: (A) a merger, consolidation, reorganization orother transaction as to which the holders of the capital stock of the Company before thetransaction continue after the transaction to hold, directly or indirectly through a holdingcompany or otherwise, shares of capital stock of the Company (or other surviving company)representing more than fifty percent (50%) of the value or ordinary voting power to electdirectors of the capital stock of the Company (or other surviving company); or (B) anyactions or events in which the Executive participates in a capacity other than in theExecutive’s capacity as an employee, director or shareholder of either the Company or theBank. For purposes of this Section 1.6, persons will be considered to be acting as a groupif they are owners of a corporation that enters into a merger, consolidation, purchase oracquisition of stock, or similar business transaction with the Company or the Bank.”     2. By adding a new Section 1.11A to read as follows:     “**1.11A ‘****Disability Period****’**means a period, beginning on the date theEmployer determines that the Executive is subject to a Disability and ending on the earlierof the date the Executive begins receiving income replacement benefits under any long-termdisability plan or policy maintained by the Employer or the date that is six (6) monthsafter such determination, during which the Executive remains subject to a Disability.”
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     3. By adding a new Section 1.16A to read as follows:     “**1.15A ‘****Separation from Service****’**shall mean a termination of the Executive’semployment that constitutes a separation from service under Treas. Reg. Section1.409A-1(h).”     4. By deleting Sections 3.2.1(b) and (c) in their entirety and substituting therefor thefollowing:     “(b) Without Cause (other than a termination in connection with a Change of Controlpursuant to Section 3.3), at any time, provided that the Employer shall give the Executivethirty (30) days’ prior written notice of its intent to terminate, in which event theEmployer, upon the Executive’s Separation from Service, shall be required to meet itsobligations to the Executive under Sections 4.1 and 4.2 for the remaining Term then ineffect; or     (c) Upon expiration of the Disability Period.”     5. By deleting Section 3.2.2(b) in its entirety and substituting therefor the following:     “(b) Upon expiration of the Disability Period.”     6. By deleting Section 3.2.6 in its entirety and substituting therefor the following:     “3.2.6 The aggregate amount payable pursuant to Section 3.2.1(b) shall only be payablecommencing upon the Executive’s Separation from Service following the payment event andshall be payable in substantially equal monthly installments over the remaining Term. Forpurposes of Section 3.2.1(b), the bonus component of the Employer’s obligation attributableto Section 4.2 shall be determined by dividing the sum of the annual bonuses, if any, paidto the Executive for the three (3) calendar years (or, if fewer, the number of full calendaryears) immediately preceding the calendar year of termination by the full number of calendaryears so determined and dividing that result by twelve (12).”     7. By deleting the third paragraph of Section 3.3 in its entirety and substituting thereforthe following:     “The amount payable pursuant to this Section 3.3 shall be paid in substantially equalmonthly installments over a twenty-four (24) month period commencing as of the first day ofthe calendar month following the effective date of the Executive’s Separation from Service.”     8. By adding the following new paragraph to the end of Section 3.3:     “Any Gross-Up Payment, as determined pursuant to this Section, shall be paid by theEmployer to the Executive or to the applicable taxing authorities on or before the date onwhich such taxes are due, but, for purposes of Code Section 409A, in all events by the endof the Executive’s taxable year following the Executive’s taxable year in which the
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Executive remits or is required to remit the related taxes (however, this period is byno means an outside payment date nor does it diminish the Executive’s right to be paidpromptly).”     9. By deleting Section 3.4.3 in its entirety and substituting therefor the following:     “3.4.3 Notwithstanding any other provision of this Agreement to the contrary, as acondition of the Employer’s payment of any amount in connection with a termination of theExecutive’s employment, the Executive must execute a release agreement in such form as isacceptable to the Employer within such period of time following termination of employment asis permitted by the Employer and not timely revoke the release agreement during anyrevocation period provided pursuant to the terms of the release agreement. All payments ofseverance under this Agreement shall accrue from the date of termination of employment andshall be made or commence at the end of the revocation period provided pursuant to the termsof the release agreement, but no later than the sixtieth (60th) day following theExecutive’s termination of employment, with any accrued but unpaid severance being paid onthe date of the first payment.”     10. By adding a new Section 3.4.5 to read as follows:     “3.4.5 Notwithstanding any provision in this Agreement to the contrary, if theExecutive is a ‘specified employee’ within the meaning of Code Section 409A on the date ofhis termination of employment, then such portion of the payments provided for in thisAgreement that would result in a tax under Code Section 409A if paid during the first six(6) months after termination of employment shall be withheld, starting with the paymentslatest in time during such six (6) month period, and paid to the Executive during theseventh month following the date of his termination of employment.”     11. By adding a new Section 4.9 to read as follows:     “**4.9****Taxable Reimbursements and In-Kind Benefits**. All taxable reimbursementsand in-kind benefits provided by the Employer shall be made or provided in accordance withthe requirements of Code Section 409A, including, where applicable, the requirement that (i)any reimbursement shall be for expenses incurred by the Executive during the Term of thisAgreement; (ii) any in-kind benefits must be provided by the Employer during the Term ofthis Agreement; (iii) the amount of expenses eligible for reimbursement, or in-kind benefitsprovided, during a calendar year may not affect the expenses eligible for reimbursement, orin-kind benefits to be provided, in any other calendar year; (iv) the reimbursement of aneligible expense will be made on or before the last day of the calendar year following theyear in which the expense is incurred; and (v) the right to reimbursement or in-kindbenefits is not subject to liquidation or exchange for another benefit.”     12. By deleting Section 16 in its entirety and substituting therefor the following:“**16.****Attorneys’ Fees****.**With respect to arbitration of disputes and if litigationensues between the parties concerning the enforcement of an arbitration award and theExecutive
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prevails in the dispute, the Employer will be financially responsible for all costs,expenses, reasonable attorneys’ fees and reasonable expenses incurred by the Executive (orthe Executive’s estate in the event of his death) in connection with the dispute and shallpay such costs and expenses to the Executive (or the Executive’s estate in the event of hisdeath) within sixty (60) days after a final determination (excluding any appeals) is madewith respect to the litigation.”     13. Except as specifically amended hereby, the Agreement shall remain in full force and effectprior to this First Amendment.     IN WITNESS WHEREOF, the Parties have caused this First Amendment to be executed on the day andyear first above written.      THE BANK: