THE
EXECUTIVE IS CURRENTLY OR MAY BE IN THE FUTURE SUBJECT TO THE PROVISIONS OF THE
EMERGENCY ECONOMIC STABILIZATION ACT OF 2008, AS MODIFIED OR AMENDED FROM TIME
TO TIME, INCLUDING PURSUANT TO THE AMERICAN RECOVERY AND REINVESTMENT ACT OF
2009 ("EESA") AND THE RULES, REGULATIONS AND GUIDANCE ISSUED THEREUNDER FROM
TIME TO TIME (INCLUDING WITHOUT LIMITATION THE RULES AND REGULATIONS ISSUED FROM
TIME TO TIME BY THE
16
DEPARTMENT OF THE TREASURY (THE "DEPARTMENT"), WHICH SHALL INCLUDE THE TARP
STANDARDS FOR CORPORATE GOVERNANCE ISSUED UNDER 31 CFR PART 30 AS PUBLISHED IN
THE FEDERAL REGISTER ON JUNE 15, 2009, AS AMENDED FROM TIME TO TIME) (SUCH
RULES, REGULATIONS AND GUIDANCE, COLLECTIVELY, THE "EESA GUIDANCE")) FOR THE
PERIOD REQUIRED BY EESA AND THE EESA GUIDANCE.
IN ADDITION, THE EXECUTIVE
AGREES THAT THE EXECUTIVE'S RIGHTS TO COMPENSATION UNDER THIS AGREEMENT AND
PARTICIPATION IN THE COMPANY'S COMPENSATION AND BENEFITS ARRANGEMENTS (THIS
AGREEMENT AND ANY AND ALL SUCH ARRANGEMENTS, COLLECTIVELY, THE "BENEFIT PLANS")
WILL OR MAY IN THE FUTURE BE LIMITED TO ENSURE THAT SUCH BENEFIT PLANS COMPLY
WITH AND ARE ADMINISTERED IN ACCORDANCE WITH THE PROVISIONS OF EESA AND THE EESA
GUIDANCE.
ACCORDINGLY, THE EXECUTIVE HEREBY (A) ACKNOWLEDGES AND UNDERSTANDS
THAT THE COMPENSATION PAYABLE TO THE EXECUTIVE UNDER ANY BENEFIT PLAN, INCLUDING
WITHOUT LIMITATION UNDER THIS AGREEMENT, MAY BE SUBJECT TO EESA AND THE EESA
GUIDANCE, INCLUDING, WITHOUT LIMITATION, (X) THE POTENTIAL FOR CLAWBACK OF ANY
BONUS, RETENTION OR INCENTIVE COMPENSATION PAID OR GRANTED TO THE EXECUTIVE
UNDER ANY BENEFIT PLAN BASED ON STATEMENTS OF EARNINGS, REVENUES, GAINS OR OTHER
CRITERIA THAT ARE LATER FOUND TO BE MATERIALLY INACCURATE OR AS OTHERWISE
PROVIDED UNDER THE EESA GUIDANCE AND (Y) THE POTENTIAL FOR THE REDUCTION OR
ELIMINATION OF THE AMOUNTS PAYABLE TO THE EXECUTIVE UNDER THIS AGREEMENT OR
OTHERWISE AS A RESULT OF THE LIMITATIONS ON GOLDEN PARACHUTE PAYMENTS UNDER EESA
AND THE EESA GUIDANCE, (B) CONSENTS TO ANY MODIFICATIONS AND LIMITATIONS PRIOR
TO A CHANGE OF CONTROL WITH RESPECT TO, AND UNDER, THE BENEFIT PLANS TO THE
EXTENT NECESSARY TO ENSURE COMPLIANCE WITH EESA AND THE EESA GUIDANCE,
(C) VOLUNTARILY WAIVES ANY CLAIM AGAINST THE COMPANY AND THE AFFILIATED
COMPANIES FOR ANY CHANGES PRIOR TO A CHANGE OF CONTROL TO THE EXECUTIVE'S
COMPENSATION OR BENEFITS THAT ARE REQUIRED TO COMPLY WITH THE EESA GUIDANCE IN
CONSIDERATION FOR THE BENEFITS THAT THE EXECUTIVE WILL RECEIVE AS A RESULT OF
THE COMPANY'S PARTICIPATION IN THE DEPARTMENT'S CAPITAL PURCHASE PROGRAM OR ANY
OTHER PROGRAM UNDER EESA, AND (E) AGREES THAT SUCH WAIVER AND CONSENT SHALL
CONSTITUTE A PART OF AND BE INTEGRATED WITH THIS AGREEMENT.]
(G)
THE AGREEMENT IS INTENDED TO COMPLY WITH THE
REQUIREMENTS OF SECTION 409A OF THE CODE OR AN EXEMPTION OR EXCLUSION THEREFROM
AND SHALL IN ALL RESPECTS BE ADMINISTERED IN ACCORDANCE WITH SECTION 409A OF THE
CODE.
EACH PAYMENT UNDER THIS AGREEMENT SHALL BE TREATED AS A SEPARATE PAYMENT
FOR PURPOSES OF SECTION 409A OF THE CODE.
IN NO EVENT MAY THE EXECUTIVE,
DIRECTLY OR INDIRECTLY, DESIGNATE THE CALENDAR