OR THE
LEVEL OF FURTHER SERVICES PERFORMED WILL NOT EXCEED 49% OF THE AVERAGE LEVEL OF
BONA FIDE SERVICES IN THE 36 MONTHS IMMEDIATELY PRECEDING THE EVENT OF
TERMINATION.
FOR ALL PURPOSES HEREUNDER, THE DEFINITION OF "SEPARATION FROM
SERVICE" SHALL BE INTERPRETED CONSISTENT WITH TREASURY REGULATION SECTION
1.409A-1(H)(II).
IF EXECUTIVE IS A SPECIFIED EMPLOYEE, AS DEFINED IN CODE
SECTION 409A AND ANY PAYMENT TO BE MADE UNDER SUBPARAGRAPH (B) OF THIS SECTION 4
SHALL BE DETERMINED TO BE SUBJECT TO CODE SECTION 409A, THEN IF REQUIRED BY CODE
SECTION 409A, SUCH PAYMENT OR A PORTION OF SUCH PAYMENT (TO THE MINIMUM EXTENT
POSSIBLE) SHALL BE DELAYED AND SHALL BE PAID ON THE FIRST DAY OF THE SEVENTH
MONTH FOLLOWING EXECUTIVE'S SEPARATION FROM SERVICE.
(E)
IN THE EVENT EXECUTIVE RESIGNS FOR ANY REASON OTHER THAN AN EVENT OF
TERMINATION (AS DESCRIBED IN SECTION 4), TERMINATION FOR JUST CAUSE (AS
DESCRIBED IN SECTION 5), TERMINATION FOR DISABILITY OR DEATH (AS DESCRIBED IN
SECTION 6) OR TERMINATION UPON RETIREMENT (AS DESCRIBED IN SECTION 7), ALL
OBLIGATIONS OF THE BANK HEREUNDER SHALL IMMEDIATELY CEASE UPON THE DATE OF SUCH
RESIGNATION.
5
Table of Contents
5.
TERMINATION FOR JUST CAUSE.
(A)
THE TERM "TERMINATION FOR JUST CAUSE" SHALL MEAN TERMINATION BECAUSE
OF EXECUTIVE'S PERSONAL DISHONESTY, INCOMPETENCE, WILLFUL MISCONDUCT, BREACH OF
FIDUCIARY DUTY INVOLVING PERSONAL PROFIT, INTENTIONAL FAILURE TO PERFORM STATED
DUTIES, WILLFUL VIOLATION OF ANY LAW, RULE OR REGULATION (OTHER THAN TRAFFIC
VIOLATIONS OR SIMILAR OFFENSES) OR FINAL CEASE-AND-DESIST ORDER, OR MATERIAL
BREACH OF ANY PROVISION OF THIS AGREEMENT.
(B)
NOTWITHSTANDING SECTION 5(A), THE BANK MAY NOT TERMINATE EXECUTIVE
FOR JUST CAUSE UNLESS AND UNTIL THERE SHALL HAVE BEEN DELIVERED TO HIM A NOTICE
OF TERMINATION WHICH SHALL INCLUDE A COPY OF A RESOLUTION DULY ADOPTED BY THE
AFFIRMATIVE VOTE OF NOT LESS THAN A MAJORITY OF THE ENTIRE MEMBERSHIP OF THE
BOARD AT A MEETING OF THE BOARD CALLED AND HELD FOR THAT PURPOSE, FINDING THAT
IN THE GOOD FAITH OPINION OF THE BOARD, EXECUTIVE HAD ENGAGED IN OR COMMITTED
THE CONDUCT JUSTIFYING TERMINATION FOR JUST CAUSE.
EXECUTIVE SHALL NOT HAVE THE
RIGHT TO RECEIVE COMPENSATION OR OTHER BENEFITS FOR ANY PERIOD AFTER TERMINATION
FOR JUST CAUSE.
DURING THE PERIOD BEGINNING ON THE DATE OF THE NOTICE OF
TERMINATION FOR JUST CAUSE PURSUANT TO SECTION 5 HEREOF THROUGH THE DATE OF
TERMINATION, ANY UNVESTED STOCK OPTIONS AND RELATED RIGHTS GRANTED TO EXECUTIVE
UNDER ANY STOCK OPTION PLAN OF THE BANK OR THE COMPANY (OR ANY AFFILIATE) SHALL
NOT BE EXERCISABLE NOR SHALL ANY UNVESTED AWARDS GRANTED TO EXECUTIVE UNDER ANY
STOCK BENEFIT PLAN OF THE BANK OR COMPANY (OR AFFILIATE THEREOF) VEST.
AT THE
DATE OF TERMINATION, ANY SUCH UNVESTED STOCK OPTIONS AND RELATED RIGHTS AND ANY
SUCH UNVESTED AWARDS SHALL BECOME NULL AND VOID AND SHALL NOT BE EXERCISABLE BY
OR DELIVERED TO EXECUTIVE AT ANY TIME SUBSEQUENT TO SUCH TERMINATION FOR JUST
CAUSE.
6.
TERMINATION FOR DISABILITY OR DEATH.
(A)
THE BANK OR EXECUTIVE MAY TERMINATE EXECUTIVE'S EMPLOYMENT AFTER
HAVING ESTABLISHED