exercisable by Executive within ninety (90)
days of the occurrence of any of the foregoing events, Executive may resign from
employment with E&B (or, if involuntarily terminated, give notice of intention
to collect benefits under this Agreement) if Executive (i) delivers a notice in
writing (the "Notice of Termination") to Bank and E&B and (ii) Bank or
4
E&B fails to cure the condition giving rise to such right to terminate within 30
days of receipt of such Notice of Termination.
In the event of termination by
Executive as a result of any of the foregoing events, such termination shall be
effective no more than 60 days after the end of the 30-day cure period described
above and the provisions of Section 6 of this Agreement shall apply."
8.
ADDITION OF NEW PROVISION TO RIGHTS IN EVENT OF TERMINATION OF
EMPLOYMENT ABSENT CHANGE IN CONTROL SECTION.
THE FOLLOWING PROVISION IS HEREBY
ADDED AS A NEW PROVISION TO SECTION 7 OF THE EMPLOYMENT AGREEMENT:
"(e)
Severance benefits paid pursuant to Section 7(a) above, to the
extent of payments made from the date of termination of the Executive's
employment through March 15th of the calendar year following such termination,
are intended to constitute separate payments for purposes of Section
1.409A-2(b)(2) of the Treasury Regulations and thus payable pursuant to the
"short-term deferral" rule set forth in Section 1.409A-1(b)(4) of the Treasury
Regulations; to the extent such payments are made following said March 15th,
they are intended to constitute separate payments for purposes of Section
1.409A-2(b)(2) of the Treasury Regulations made upon an involuntary termination
from service and payable pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury
Regulations, to the maximum extent permitted by said provision. Notwithstanding
the foregoing, if Bank or E&B determines that any other payments hereunder fail
to satisfy the distribution requirement of Section 409A(a)(2)(A) of the Code,
the payment of such benefit shall be delayed to the minimum extent necessary so
that such payments are not subject to the provisions of Section 409A(a)(1) of
the Code."
9.
RATIFICATION OF AGREEMENT.
EXCEPT AS OTHERWISE PROVIDED IN THIS
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT, ALL TERMS AND CONDITIONS OF THE
EMPLOYMENT AGREEMENT REMAIN IN FULL FORCE AND EFFECT, AND NOTHING CONTAINED IN
THIS SECOND AMENDMENT TO EMPLOYMENT AGREEMENT SHALL BE DEEMED TO ALTER OR AMEND
ANY PROVISION OF THE EMPLOYMENT AGREEMENT EXCEPT AS SPECIFICALLY PROVIDED
HEREIN.
REFERENCES IN THE EMPLOYMENT AGREEMENT TO THE "AGREEMENT" SHALL BE
DEEMED TO BE REFERENCES TO THE EMPLOYMENT AGREEMENT AS AMENDED HEREBY.
10.
WAIVER. NO PROVISION OF THIS SECOND AMENDMENT TO EMPLOYMENT
AGREEMENT MAY BE MODIFIED, WAIVED, OR DISCHARGED UNLESS SUCH WAIVER,
MODIFICATION, OR DISCHARGE IS AGREED TO IN WRITING AND SIGNED BY EXECUTIVE AND
AN EXECUTIVE OFFICER SPECIFICALLY DESIGNATED BY THE BOARDS OF DIRECTORS OF
BANCORP AND E&B.
NO WAIVER BY ANY PARTY HERETO AT ANY TIME OF ANY BREACH BY THE
OTHER PARTY HERETO OF, OR COMPLIANCE WITH, ANY CONDITION OR PROVISION OF THIS
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT TO BE PERFORMED BY SUCH OTHER