AS ANY OTHER CREDITOR
HAVING A GENERAL UNSECURED CLAIM.
FOR PURPOSES OF THE CODE, THE BANK INTENDS
THIS AGREEMENT TO BE AN UNFUNDED, UNSECURED PROMISE TO PAY ON THE PART OF THE
BANK.
FOR PURPOSES OF EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE BANK INTENDS THAT THIS AGREEMENT NOT BE SUBJECT TO
ERISA.
IF IT IS DEEMED SUBJECT TO ERISA, IT IS INTENDED TO BE AN UNFUNDED
ARRANGEMENT FOR THE BENEFIT OF A SELECT MEMBER OF MANAGEMENT, WHO IS A HIGHLY
COMPENSATED EMPLOYEE OF THE BANK FOR THE PURPOSE OF QUALIFYING THIS AGREEMENT
FOR THE "TOP HAT" PLAN EXCEPTION UNDER SECTIONS 201(2), 301(A)(3) AND
401(A)(1) OF ERISA.
AT NO TIME SHALL THE EXECUTIVE HAVE OR BE DEEMED TO HAVE
ANY LIEN NOR RIGHT, TITLE OR INTEREST IN OR TO ANY SPECIFIC INVESTMENT OR TO ANY
ASSETS OF THE BANK.
IF THE BANK ELECTS TO INVEST IN A LIFE INSURANCE,
DISABILITY OR ANNUITY POLICY UPON THE LIFE OF THE EXECUTIVE, THEN THE EXECUTIVE
SHALL ASSIST THE BANK BY FREELY SUBMITTING TO A PHYSICAL EXAMINATION AND
SUPPLYING SUCH ADDITIONAL INFORMATION NECESSARY TO OBTAIN SUCH INSURANCE OR
ANNUITIES.
40.
WHEN A REFERENCE IS MADE IN THIS AGREEMENT TO A PARAGRAPH OR A
SECTION, SUCH REFERENCES SHALL BE TO A PARAGRAPH OR A SECTION OF THIS AGREEMENT
UNLESS OTHERWISE INDICATED.
THE HEADINGS CONTAINED IN THIS AGREEMENT ARE FOR
CONVENIENCE OF REFERENCE ONLY AND SHALL NOT AFFECT IN ANY WAY THE MEANING OR
INTERPRETATION OF THIS AGREEMENT.
WHENEVER THE WORDS "INCLUDE," "INCLUDES" OR
"INCLUDING" ARE USED IN THIS AGREEMENT, THEY SHALL BE DEEMED TO BE FOLLOWED BY
THE WORDS "WITHOUT LIMITATION."
THE WORDS "HEREOF," "HEREIN" AND "HEREUNDER"
AND WORDS OF SIMILAR IMPORT WHEN USED IN THIS AGREEMENT SHALL REFER TO THIS
AGREEMENT AS A WHOLE AND NOT TO ANY PARTICULAR PROVISION IN THIS AGREEMENT.
EACH USE HEREIN OF THE MASCULINE, NEUTER OR FEMININE GENDER SHALL BE DEEMED TO
INCLUDE THE OTHER GENDERS.
EACH USE HEREIN OF THE PLURAL SHALL INCLUDE THE
SINGULAR AND VICE VERSA, IN EACH CASE AS THE CONTEXT REQUIRES OR AS IS OTHERWISE
APPROPRIATE.
THE WORD "OR" IS USED IN THE INCLUSIVE SENSE.
ANY AGREEMENT OR
INSTRUMENT DEFINED OR REFERRED TO HEREIN OR IN ANY AGREEMENT OR INSTRUMENT THAT
IS REFERRED TO HEREIN MEANS SUCH AGREEMENT OR INSTRUMENT AS FROM TIME TO TIME
AMENDED, MODIFIED OR SUPPLEMENTED, INCLUDING BY WAIVER OR CONSENT.
REFERENCES
TO A PERSON ARE ALSO TO ITS PERMITTED SUCCESSORS OR ASSIGNS.
10
41.
EXECUTIVE REPRESENTS THAT HIS OR HER SERVICE AS AN EMPLOYEE OF THE
BANK WILL NOT VIOLATE ANY AGREEMENT THAT:
(I) PROHIBITS EXECUTIVE FROM
DISCLOSING ANY INFORMATION ACQUIRED PRIOR TO BECOMING EMPLOYED BY THE BANK; OR
(II) PROHIBITS EXECUTIVE FROM ACCEPTING EMPLOYMENT WITH THE BANK OR THAT WILL
INTERFERE WITH COMPLIANCE WITH THE TERMS OF THIS AGREEMENT.
EXECUTIVE FURTHER
REPRESENTS THAT EXECUTIVE HAS NOT PREVIOUSLY, AND WILL NOT IN THE FUTURE,
DISCLOSE TO BANK ANY PROPRIETARY INFORMATION OR TRADE SECRETS BELONGING TO ANY
PREVIOUS EMPLOYER.
EXECUTIVE ACKNOWLEDGES THAT THE BANK HAS INSTRUCTED