OR
BENEFIT THAT THE EXECUTIVE BECOMES ENTITLED TO UNDER THIS AGREEMENT IS
CONSIDERED DEFERRED COMPENSATION SUBJECT TO INTEREST, PENALTIES AND ADDITIONAL
TAX IMPOSED PURSUANT TO SECTION 409A(A) OF THE CODE AS A RESULT OF THE
APPLICATION OF SECTION 409A(A)(2)(B)(I) OF THE CODE, THEN NO SUCH PAYMENT SHALL
BE PAYABLE OR BENEFIT SHALL BE PROVIDED PRIOR TO THE DATE THAT IS THE EARLIER OF
(I) SIX MONTHS AND ONE DAY AFTER THE EXECUTIVE'S SEPARATION FROM SERVICE, OR
(II) THE EXECUTIVE'S DEATH.
THE PARTIES INTEND THAT THIS AGREEMENT WILL BE
ADMINISTERED IN ACCORDANCE WITH SECTION 409A OF THE CODE.
THE PARTIES AGREE
THAT THIS AGREEMENT MAY BE AMENDED, AS REASONABLY REQUESTED BY EITHER PARTY, AND
AS MAY BE NECESSARY TO FULLY COMPLY WITH SECTION 409A OF THE CODE AND ALL
RELATED RULES AND REGULATIONS IN ORDER TO PRESERVE THE PAYMENTS AND BENEFITS
PROVIDED HEREUNDER WITHOUT ADDITIONAL COST TO EITHER PARTY.
NOTWITHSTANDING
ANYTHING IN THIS
4
AGREEMENT TO THE CONTRARY, TO THE EXTENT THAT ANY PAYMENT OR BENEFIT DESCRIBED
IN THIS AGREEMENT CONSTITUTES "NON-QUALIFIED DEFERRED COMPENSATION" UNDER
SECTION 409A OF THE CODE, AND TO THE EXTENT THAT SUCH PAYMENT OR BENEFIT IS
PAYABLE UPON THE EXECUTIVE'S TERMINATION OF EMPLOYMENT, THEN SUCH PAYMENTS OR
BENEFITS SHALL ONLY BE PAYABLE UPON THE EXECUTIVE'S "SEPARATION FROM SERVICE."
THE TERM "SEPARATION FROM SERVICE" SHALL MEAN THE EXECUTIVE'S "SEPARATION FROM
SERVICE" FROM THE BANK OR THE COMPANY, AN AFFILIATE OF THE BANK OR THE COMPANY
OR A SUCCESSOR ENTITY WITHIN THE MEANING SET FORTH IN SECTION 409A OF THE CODE,
DETERMINED IN ACCORDANCE WITH THE PRESUMPTIONS SET FORTH IN TREASURY REGULATION
SECTION 1.409A-1(H).
THE EMPLOYERS MAKE NO REPRESENTATION OR WARRANTY AND SHALL
HAVE NO LIABILITY TO THE EXECUTIVE OR ANY OTHER PERSON IF ANY PROVISIONS OF THIS
AGREEMENT ARE DETERMINED TO CONSTITUTE DEFERRED COMPENSATION SUBJECT TO
SECTION 409A OF THE CODE BUT DO NOT SATISFY AN EXEMPTION FROM, OR THE CONDITIONS
OF, SUCH SECTION.
5.
ADDITIONAL LIMITATION.
ANYTHING IN
THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, IN THE EVENT THAT ANY
COMPENSATION, PAYMENT OR DISTRIBUTION BY THE EMPLOYERS TO OR FOR THE BENEFIT OF
THE EXECUTIVE, WHETHER PAID OR PAYABLE OR DISTRIBUTED OR DISTRIBUTABLE PURSUANT
TO THE TERMS OF THIS AGREEMENT OR OTHERWISE (THE "SEVERANCE PAYMENTS"), WOULD BE
SUBJECT TO THE EXCISE TAX IMPOSED BY SECTION 4999 OF THE CODE, THEN THE BENEFITS
PAYABLE UNDER THIS AGREEMENT SHALL BE REDUCED (BUT NOT BELOW ZERO) TO THE EXTENT
NECESSARY SO THAT THE MAXIMUM SEVERANCE PAYMENTS SHALL NOT EXCEED THE THRESHOLD
AMOUNT.
TO THE EXTENT THAT THERE IS MORE THAN ONE METHOD OF REDUCING THE
PAYMENTS TO BRING THEM WITHIN THE THRESHOLD AMOUNT, THE SEVERANCE PAYMENTS SHALL
BE REDUCED IN THE FOLLOWING ORDER:
(1) CASH PAYMENTS NOT SUBJECT TO
SECTION 409A OF THE CODE; (2) CASH PAYMENTS SUBJECT TO SECTION 409A OF THE CODE;
(3) EQUITY-BASED PAYMENTS AND ACCELERATION; AND (4) NON-CASH FORMS OF BENEFITS.
TO THE EXTENT ANY PAYMENT IS TO BE MADE OVER TIME (E.G., IN INSTALLMENTS, ETC.),
THEN THE PAYMENTS SHALL BE REDUCED IN REVERSE CHRONOLOGICAL ORDER.