(B) COLLECTIVELY, THE "ACCRUED OBLIGATIONS").
(B)
RELEASE REQUIREMENT.
AS A CONDITION TO THE EXECUTIVE BECOMING
ENTITLED TO THE SEVERANCE BENEFITS UNDER SECTION 1(A) (OTHER THAN THE ACCRUED
OBLIGATIONS), THE EXECUTIVE AGREES TO EXECUTE WITHIN TWENTY-ONE (21) DAYS AFTER
THE EXECUTIVE'S DATE OF TERMINATION OF EMPLOYMENT
2
a general release and waiver in favor of the Company and its affiliates in
exactly the form provided to the Executive by the Company without alteration or
addition (the "Release Agreement"), which Release Agreement shall be provided by
the Company to the Executive no later than the date of termination.
(C)
CAUSE.
FOR THE PURPOSES OF THIS SECTION 1, "CAUSE" SHALL
MEAN ANY OF THE FOLLOWING: 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 MATERIAL
BREACH OF ANY PROVISION OF THIS AGREEMENT. IN DETERMINING INCOMPETENCE, THE ACTS
OR OMISSIONS SHALL BE MEASURED AGAINST STANDARDS GENERALLY PREVAILING IN THE
FEDERALLY INSURED FINANCIAL INSTITUTIONS INDUSTRY; PROVIDED,
THAT IT SHALL BE
THE COMPANY'S BURDEN TO PROVE THE ALLEGED ACTS AND OMISSIONS AND THE PREVAILING
NATURE OF THE STANDARDS OF CONDUCT THE COMPANY SHALL HAVE ALLEGED ARE VIOLATED
BY SUCH ACTS AND/OR OMISSIONS.
2.
COVENANTS.
(A)
CONFIDENTIAL INFORMATION.
WHILE EMPLOYED BY THE COMPANY AND
THEREAFTER, THE EXECUTIVE SHALL HOLD IN A FIDUCIARY CAPACITY FOR THE BENEFIT OF
THE COMPANY ALL SECRET OR CONFIDENTIAL INFORMATION, KNOWLEDGE OR DATA RELATING
TO THE COMPANY OR ANY OF ITS AFFILIATES AND THEIR RESPECTIVE BUSINESSES, WHICH
SHALL HAVE BEEN OBTAINED BY THE EXECUTIVE DURING THE EXECUTIVE'S EMPLOYMENT BY
THE COMPANY OR ANY OF ITS AFFILIATES AND WHICH SHALL NOT BE OR BECOME PUBLIC
KNOWLEDGE (OTHER THAN BY ACTS BY THE EXECUTIVE OR REPRESENTATIVES OF THE
EXECUTIVE IN VIOLATION OF THIS AGREEMENT). AFTER TERMINATION OF THE EXECUTIVE'S
EMPLOYMENT WITH THE COMPANY FOR ANY REASON, THE EXECUTIVE SHALL NOT, WITHOUT THE
PRIOR WRITTEN CONSENT OF THE COMPANY OR AS MAY OTHERWISE BE REQUIRED BY LAW OR
LEGAL PROCESS: (I) COMMUNICATE OR DIVULGE ANY SUCH INFORMATION, KNOWLEDGE OR
DATA TO ANYONE OTHER THAN THE COMPANY AND THOSE DESIGNATED BY IT; OR (II) USE TO
THE EXECUTIVE'S ADVANTAGE OR TO THE DETRIMENT OF THE COMPANY ANY SUCH
INFORMATION, KNOWLEDGE OR DATA.
(B)
NON-RECRUITMENT OF EMPLOYEES.
DURING THE PERIOD OF
EXECUTIVE'S EMPLOYMENT WITH THE COMPANY AND ITS SUBSIDIARIES AND THE ADDITIONAL
PERIOD ENDING ON THE FIRST ANNIVERSARY OF THE DATE OF TERMINATION OF THE
EXECUTIVE'S EMPLOYMENT FOR ANY REASON (THE "RESTRICTED PERIOD"), THE EXECUTIVE
SHALL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY, DIRECTLY OR
INDIRECTLY, (I) OFFER EMPLOYMENT (OR A CONSULTING, AGENCY, INDEPENDENT
CONTRACTOR OR OTHER SIMILAR PAID POSITION) TO ANY PERSON WHO IS OR WAS AT ANY
TIME DURING THE SIX MONTHS PRIOR TO SUCH OFFER AN EMPLOYEE, REPRESENTATIVE,
OFFICER OR DIRECTOR OF THE COMPANY OR ANY OF ITS SUBSIDIARIES OR (II) INDUCE,
ENCOURAGE OR SOLICIT ANY SUCH PERSON TO ACCEPT EMPLOYMENT (OR ANY AFORESAID
POSITION) WITH ANY