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EXHIBIT 10.24
TERMINATION PROTECTION AGREEMENT
THIS AGREEMENT is entered into as of the date specified in Section 2
below as the Effective Date, by and between BancWest Corporation, a Delaware
corporation, and Xxxxxx X. Xxxx (the "Executive").
Executive is a skilled and dedicated employee who has important
management responsibilities and talents, which benefit the Company. The Company
believes that its best interests will be served if Executive is encouraged to
remain with the Company. The Company has determined that Executive's ability to
perform Executive's responsibilities and utilize Executive's talents for the
benefit of the Company, and the Company's ability to retain Executive as an
employee, will be significantly enhanced if Executive is provided with fair and
reasonable protection from the risks of a change in ownership or control of the
Company. Accordingly, the Company and Executive agree as follows:
1. Defined Terms.
Unless otherwise indicated, capitalized terms used in this Agreement
which are defined in Schedule A shall have the meanings set forth in Schedule A.
2. Effective Date; Term.
This Agreement shall be effective as of the date of the consummation of
the transaction(s) contemplated by the Agreement and Plan of Merger dated as of
May 7, 2001 by and among the Company, BNP Paribas, a societe anonyme or limited
liability banking corporation organized under the laws of the Republic of France
("BNP"), and Newco 1 (the "Effective Date") and shall remain in effect until the
third anniversary thereof (the "Term"). Notwithstanding the foregoing, this
Agreement shall, if in effect on the date of a Change of Control, remain in
effect for two years following the Change of Control.
3. Change of Control Benefits.
If, during the Term of this Agreement, Executive's employment with the
Company is terminated at any time by the Company without Cause, or by Executive
for Good Reason (the effective date of either such termination hereafter
referred to as the "Termination Date"), Executive shall be entitled to the
payments and benefits provided hereafter in this Section 3 and as set forth in
this Agreement. Notice of termination without Cause or for Good Reason shall be
given in accordance with Section 14, and shall indicate the specific termination
provision hereunder relied upon, the relevant facts and circumstances and the
Termination Date.
(a) Severance Payments. Within fifteen business days after the
Termination Date, the Company shall pay Executive a cash lump
sum equal to:
(1) 200% of the sum of (A) the Executive's annual rate of
Base Salary, as in effect on the date of the employment
termination, plus (B) the arithmetic mean of the Annual
Bonuses awarded to the
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Executive by the Company for the three most recent
consecutive fiscal years ending prior to the date of the
employment termination (regardless of when paid), plus
(C) an amount equal to the arithmetic mean of the awards
paid or payable to the Executive under the Company LTIP
and/or New LTIP, as applicable, in respect of the three
most recently completed performance cycles under such
plan, provided that such amount shall in no event be
less than the Executive's award payable in year 2000
under the Company LTIP; and
(2) The sum of (A) the Executive's Target Bonus for the
fiscal year of termination multiplied by a fraction (the
"Fraction"), the numerator of which shall equal the
number of days the Executive was employed by the Company
in the fiscal year in which the termination occurs, and
the denominator of which shall equal 365, plus (B) the
target award(s) in respect of all performance periods in
existence under the Company LTIP and/or New LTIP, as
applicable, as of the date of termination, to which the
Executive may become entitled under the applicable plan,
multiplied by the Fraction.
(b) Equity Incentive Compensation. Upon termination, all unvested
stock options, stock appreciation (phantom stock) rights
("SARs") (if any) and any restricted stock awards shall become
fully vested, and all options and SARs shall remain outstanding
and exercisable for the balance of the term of such awards.
(c) Insurance Coverage. During the 24-month period commencing upon a
termination of employment described in this Section 3 above
(such period, the "Severance Period"), the Executive (and, where
applicable, his dependents) shall be entitled to continue
participation in the group insurance plans maintained by the
Company, including life, disability and health insurance
programs, as if he were still an employee of the Company. Where
applicable, the Executive's salary for purposes of such plans
shall be deemed to be equal to his Base Salary as of the date of
termination of the Executive's employment. To the extent that
the Company finds it impossible to cover the Executive under its
group insurance policies during the Severance Period, the
Company shall provide the Executive with individual policies
which offer at least the same level of coverage and which impose
not more than the same costs on him. The foregoing
notwithstanding, in the event that the Executive becomes
eligible for comparable group insurance coverage in connection
with new employment, the coverage provided by the Company under
this subsection (c) shall become secondary. Any group health
continuation coverage that the Company is required to offer
under the Consolidated Omnibus Budget Reconciliation Act of 1986
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("COBRA") shall commence when coverage under this subsection (c)
terminates.
(d) Payment of Earned But Unpaid Amounts. Within fifteen business
days after the Termination Date, the Company shall pay Executive
the Base Salary through the Termination Date, any Bonus earned
but unpaid as of the Termination Date for any previously
completed fiscal year of the Company, all compensation
previously deferred by Executive but not yet paid and
reimbursement for any unreimbursed expenses properly incurred by
Executive in accordance with Company policies prior to the
Termination Date. Executive shall also receive such employee
benefits, if any, to which Executive may be entitled from time
to time under the Executive benefit or fringe benefit plans,
policies or programs of the Company, other than any Company
severance policy (payments and benefits in this subsection (d),
the "Accrued Benefits").
(e) Additional Benefit Plan Service and Age. For purposes of
eligibility for retirement, for early commencement or actuarial
subsidies under any Company (or and subsidiary thereof) pension,
medical reimbursement or life insurance plan (or any such
alternative contractual arrangement that the Executive may have
with the Company (or and subsidiary thereof), Executive will be
credited with an additional two years of service and age beyond
that accrued as of the Termination Date; provided that if any
benefits afforded by this Agreement, including the benefits
arising from the grant of additional service and age, cannot be
provided under the qualified pension plan of the Company due to
the qualification provisions of the Code, the benefit, or its
equivalent in value, shall be provided under a nonqualified
pension plan of the Company.
4. Mitigation.
Executive shall not be required to mitigate damages or the amount of any
payment provided for under this Agreement by seeking other employment or
otherwise, and, subject to Section 3(c), compensation earned from such
employment or otherwise shall not reduce the amounts otherwise payable under
this Agreement. No amounts payable under this Agreement shall be subject to
reduction or offset in respect of any claims, which the Company (or any other
person or entity) may have against Executive.
5. Tax Effect of Payments.
(a) Excise Tax Restoration Payment. In the event that it is
determined that any payment, benefit provided or distribution of
any type (including, without limitation, the value of the
acceleration of vesting of, or payment in respect of, any
options or other equity or equity-based awards, and the payment
of any amounts under the Company LTIP (or any other similar
plan, program or arrangement), by the Company, by
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any of its affiliates, by any one or more trusts established by
the Company (or any of its affiliates) for the benefit of its
employees, by any person who acquires ownership or effective
control of the Company or ownership of a substantial portion of
the Company's assets (within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended, and the regulations
thereunder (the "Code")) or by any affiliate of such person, to
or for the benefit of the Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this
Agreement, an employment agreement or otherwise (the "Total
Payments"), would be subject to the excise tax imposed by
Section 4999 of the Code or any interest or penalties are
incurred by the Executive with respect to such excise tax (such
excise tax, together with any such interest or penalties, are
collectively referred to as the "Excise Tax"), then the
Executive shall be entitled to receive an additional payment (an
"Excise Tax Restoration Payment") in an amount that shall fund
the payment by the Executive of any Excise Tax on the Total
Payments as well as all income taxes imposed on the Excise Tax
Restoration Payment, any Excise Tax imposed on the Excise Tax
Restoration Payment and any interest or penalties imposed with
respect to taxes on the Excise Tax Restoration Payment or any
Excise Tax.
(b) Determination by Auditors. All mathematical determinations and
all determinations of whether any of the Total Payments are
"parachute payments" (within the meaning of Section 280G of the
Code) that are required to be made under this Agreement,
including all determinations of whether an Excise Tax
Restoration Payment is required, of the amount of such Excise
Tax Restoration Payment and of amounts relevant to the last
sentence of subsection (c), shall be made by the independent
auditors retained by the Company most recently prior to the
relevant change in control and subject to the Executive's
reasonable approval (the "Auditors"), who shall provide their
determination (the "Determination"), together with detailed
supporting calculations regarding the amount of any Excise Tax
Restoration Payment and any other relevant matters, both to the
Company and to the Executive within seven business days of the
Executive's termination date, if applicable, or such earlier
time as is requested by the Company or by the Executive (if the
Executive reasonably believes that any of the Total Payments may
be subject to the Excise Tax). If the Auditors determine that no
Excise Tax is payable by the Executive, it shall furnish the
Executive with a written statement that such Auditors have
concluded that no Excise Tax is payable (including the reasons
therefor) and that the Executive has substantial authority not
to report any Excise Tax on the Executive's federal income tax
return. If an Excise Tax Restoration Payment is determined to be
payable, it shall be paid to the Executive within five business
days after the Determination is delivered to the Company or the
Executive. Any determination by the Auditors shall be binding
upon the Company and the Executive, absent manifest error.
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(c) Underpayments and Overpayments. As a result of uncertainty in
the application of Section 4999 of the Code at the time of the
initial determination by the Auditors hereunder, it is possible
that Excise Tax Restoration Payments may not be made by the
Company that should be made ("Underpayments") or that Excise Tax
Restoration Payments will have been made by the Company which
should not have been made ("Overpayments"). In either event, the
Auditors shall determine the amount of the Underpayment or
Overpayment that has occurred as soon as possible. In the case
of an Underpayment, the amount of such Underpayment shall
promptly be paid by the Company to or for the benefit of the
Executive. In the case of an Overpayment, the Executive shall,
at the direction and expense of the Company, take such steps as
are reasonably necessary (including the filing of returns and
claims for refund), follow reasonable instructions from, and
procedures established by, the Company and otherwise reasonably
cooperate with the Company to correct such Overpayment;
provided, however, that (i) the Executive shall in no event be
obligated to return to the Company an amount greater than the
net after-tax portion of the Overpayment that the Executive has
retained or has recovered as a refund from the applicable taxing
authorities and (ii) this provision shall be interpreted in a
manner consistent with the intent of this agreement, which is to
make the Executive whole, on an after-tax basis, for the
application of the Excise Tax, it being understood that the
correction of an Overpayment may result in the Executive's
repaying to the Company an amount which is less than the
Overpayment.
6. Termination for Cause.
Nothing in this Agreement shall be construed to prevent the Company from
terminating Executive's employment for Cause. If Executive is terminated for
Cause, the Company shall have no obligation to make any payments under this
Agreement, except for the Accrued Benefits.
7. Non-Competition
(a) Covenant Not To Compete. This Section 7 shall apply:
(i) During the Term; and
(ii) During the two-year period following the termination of
the Executive's employment by the Company without Cause
(other than for Disability) or by the Executive's
resignation for Good Reason.
While this Section 7 applies, the Executive shall not, directly
or indirectly, engage in any banking business or activity in the
States of
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California, Hawaii, Nevada, New Mexico, Oregon, Washington, or
Idaho ("Competitive Business") nor be employed by, render
services of any kind to, advise or receive compensation in any
form from, nor invest or participate in any manner or capacity
in, any entity or person which directly or indirectly engages in
a Competitive Business.
(b) Exception. Subsection (a) above shall not preclude investments
in a corporation whose stock is traded on a public market and of
which the Executive owns less than five percent of the
outstanding shares.
(c) Purpose of Covenant. It is agreed by both parties hereto that
the covenants contained in subsection (a) above are reasonable
and necessary to protect the confidentiality of the customer
lists, trade secrets, and other confidential information
concerning the Company, acquired by the Executive.
(d) Specific Performance. The Executive and the Company recognize
and agree that (i) because of the nature of the businesses in
which the Company and its subsidiaries are engaged and because
of the nature of the confidential information that the Executive
has acquired or will acquire with respect to the businesses of
the Company and its subsidiaries, it would be impracticable and
excessively difficult to determine the actual damages of the
Company or its subsidiaries in the event that the Executive
breaches any of the covenants contained in subsection (a) above,
and (ii) damages in an action at law would not constitute
reasonable or adequate compensation to the Company or its
subsidiaries in the event that the Executive breaches any of
such covenants. Accordingly, if the Executive commits any breach
of such covenants or threatens to commit any such breach, then
the Company shall have the right to have the covenants contained
in subsection (a) above specifically enforced by any court
having equity jurisdiction, without posting bond or other
security, it being acknowledged and agreed by both parties
hereto that any such breach or threatened breach would cause
irreparable injury to the Company and its subsidiaries and that
an injunction may be issued against the Executive. The rights
described in this subsection (d) shall be in addition to, and
not in lieu of, any other rights or remedies available to the
Company under law or in equity.
(e) Modification by Court. If any of the covenants contained in
subsection (a) above is determined to be unenforceable because
of the duration of such covenants or the area covered thereby,
then the court making the determination shall have the power to
reduce the duration of such covenants and/or the area covered
thereby, and such covenants, in their reduced form, shall be
enforceable.
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(f) Different Jurisdictions. If any of the covenants contained in
subsection (a) above is determined to be wholly unenforceable by
the courts of any domestic or foreign jurisdiction, then the
determination shall not bar or in any way affect the Company's
right to relief in the courts of any other jurisdiction with
respect to any breach of such covenants in such other
jurisdiction. Such covenants, as they relate to each
jurisdiction, shall be severable into independent covenants and
shall be governed by the laws of the jurisdiction where a breach
occurs.
8. No Solicitation; Non-Disclosure of Confidential Information.
(a) This Section 8 shall apply (i) during the Term and (ii)
during the one-year period following the termination of
the Executive's employment by the Company for Cause or
by the Executive's voluntary resignation without Good
Reason. While this Section 8 applies, the Executive
shall not, directly or indirectly, contact any employee
of the Company or any of its subsidiaries to solicit
such employee to become an employee, partner or
independent contractor of the Executive or any other
person.
(b) During the Term of this Agreement and thereafter, the
Executive shall not, without the prior written consent
of the Board, disclose or use for any purpose (except in
the course of his employment and in furtherance of the
business of the Company and its subsidiaries)
confidential information or proprietary data of the
Company and its subsidiaries, except as required by
applicable law or legal process; provided, however, that
confidential information shall not include any
information known generally to the public or
ascertainable from public or published information
(other than as a result of unauthorized disclosure by
the Executive) or any information of a type not
otherwise considered confidential by persons engaged in
the same business or a business similar to that
conducted by the Company and its subsidiaries; provided,
further, that the Executive may disclose the existence
and contents of this Agreement to his family, legal
advisors, accountant and other financial advisors. The
Executive agrees to deliver to the Company at the
termination of his employment to the extent reasonably
requested by the Company, or at any other time the
Company may reasonably request, all memoranda, notes,
plans, records, reports and other documents (and copies
thereof) relating to the business of the Company and its
subsidiaries which he may then possess or have under his
control except for personal notes of the Executive
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9. Indemnification; Director's and Officer's Liability Insurance.
The Company shall indemnify the Executive to the fullest extent
permitted by applicable law against damages in connection with his status or
performance of duties as an officer or director of the Company or any of its
affiliates and shall maintain and cover the Executive under customary and
appropriate directors and officers liability insurance during the Term and
throughout the period of any applicable statute of limitations with respect to
any acts, omissions or other matters that may have occurred or arisen during the
Term.
10. Arbitration.
Except as otherwise provided in Section 7, any controversy or claim
arising out of or relating to this Agreement or the breach thereof, shall be
settled by arbitration in Honolulu, Hawaii, in accordance with the rules of the
American Arbitration Association then in effect. Discovery shall be permitted to
the same extent as in a proceeding under the Federal Rules of Civil Procedure.
Judgment may be entered on the arbitrator's award in any court having
jurisdiction. All fees and expenses of the arbitrator and of the Executive's
legal counsel shall be paid (or promptly reimbursed to the Executive) by the
Company.
11. No Assignment.
The rights of any person to payments or benefits under this Agreement
shall not be made subject to option or assignment, either by voluntary or
involuntary assignment or by operation of law, including (without limitation)
bankruptcy, garnishment, attachment or other creditor's process, and any action
in violation of this Section 11 shall be void.
12. Withholding.
Notwithstanding any other provision of this Agreement, the Company may,
to the extent required by law, withhold applicable federal, state and local
income and other taxes from any payments due to Executive hereunder.
13. Applicable Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware, without regard to conflicts of laws principles
thereof.
14. Notice.
Notices and all other communications contemplated by this Agreement
shall be in writing and shall be deemed to have been duly given when personally
delivered or when mailed by U.S. registered or certified mail, return receipt
requested and postage prepaid. In the case of the Executive, mailed notices
shall be addressed to him at the home address which he most recently
communicated to the Company in writing. In the case of the Company, mailed
notices shall be addressed to its corporate headquarters, and all notices shall
be directed to the attention of its Secretary
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15. Entire Agreement; Modification.
No agreements, representations or understandings (whether oral or
written and whether express or implied) which are not expressly set forth in
this Agreement have been made or entered into by either party with respect to
the subject matter hereof. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof. A modification of this
Agreement shall be valid only if it is made in writing and executed by both
parties hereto. This Agreement shall be subject to the requirements of any
applicable banking law, regulation or order.
16. Counterparts.
This Agreement may be signed in counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
[Signatures on next page.]
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized officer, as of the 7th day of May
2001, to be effective as of the Effective Date.
BANCWEST CORPORATION
By: /s/ Xxxxxx X. Xxxx, Xx.
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Title: Chairman & Chief Executive Officer
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EXECUTIVE:
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
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SCHEDULE A
CERTAIN DEFINITIONS
As used in this Agreement, and unless the context requires a different
meaning, the following terms, when capitalized, have the meaning indicated:
I. "Act" means the Securities Exchange Act of 1934, as amended.
II. "Annual Bonus" means the amount payable to Executive under the
Company's applicable annual bonus plan with respect to a fiscal year of the
Company.
III. "Bank" means First Hawaiian Bank.
IV. "Base Salary" means Executive's annual rate of base salary in
effect on the date in question.
V. "Cause" means either of the following:
(1) A material failure by the Executive to perform substantially all
of his duties, other than a failure resulting from the
Executive's complete or partial incapacity due to physical or
mental illness or impairment, hereunder;
(2) Gross misconduct, material fraud or material dishonesty to the
Company or its employees in the performance of the Executive's
duties to the Company;
(3) Conviction of, or plea of "guilty" or "no contest" to, a felony
under the laws of the United States or any state thereof; or
(4) A material violation by the Executive in the course of his
duties hereunder of any law or regulation to which the Company
is subject provided that the Executive knew or should have known
that the conduct in question was in violation of such law or
regulation; provided, that a violation of such law or regulation
shall be deemed to be "material" only if it results in material
financial loss to the Company or if it materially impairs the
Executive's ability to perform his duties hereunder or his value
to the Company as its officer; and provided, further, that the
Executive shall be fully protected by, and entitled to rely
upon, advice of counsel to the Company for purposes of
determining whether the Executive knew or should have known that
the conduct in question was in violation of such law or
regulation.
For purposes of this Agreement, no act or failure to act on the
Executive's part shall constitute "Cause" if done, or omitted,
by him in good faith and in the reasonable belief that his
action or omission was in, or not opposed to, the best interest
of the Company. Termination of the Executive for Cause shall be
made by delivery from the chief executive officer of the Company
(the "CEO") to the Executive of written notice, at least 30
days' prior to the effective date of such
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termination, specifying the basis, in the reasonable judgment of
the CEO, for such termination and the particulars thereof;
provided that with respect to clauses (1), (2) and (4) the
Executive shall have a reasonable opportunity to cure or
otherwise resolve the behavior in question prior to the
effective date of such termination, in which case Cause shall
not exist.
VI. "Change of Control" means the first to occur of any of the
following:
(1) BNP (and any of its wholly owned subsidiaries) do not
have, by themselves, the ability to elect a majority of
the Board,
(2) any Person (other than BNP, the Company, any trustee or
other fiduciary holding securities under an employee
benefit plan of BNP, the Company, or any company owned,
directly or indirectly, by the shareholders of BNP or
the Company in substantially the same proportions as
their ownership of stock of BNP or the Company), becomes
the beneficial owner, directly or indirectly, of
securities of BNP or the Company, representing 25% or
more of the combined voting power of BNP's or the
Company's then-outstanding securities, or
(3) the consummation of any merger, consolidation, plan of
arrangement, reorganization or similar transaction or
series of transactions in which BNP or the Company is
involved, other than such a transaction or series of
transactions which would result in the shareholders of
BNP or the Company immediately prior thereto continuing
to own (either by remaining outstanding or by being
converted into voting securities of the surviving
entity) more than 50% of the combined voting power of
the securities of BNP or the Company (or such surviving
entity (or the parent, if any)) outstanding immediately
after such transaction(s) in substantially the same
proportions as their ownership immediately prior to such
transaction(s).
For purposes of the Agreement, a Change in Control shall
not be deemed to have occurred upon the Effective Date
by reason of the transactions contemplated by the
Agreement and Plan of Merger among BNP, the Company and
Newco 1 dated as of May 7, 2001 or by reason of any
changes to the Board approved by BNP or its affiliates.
VII. "Code" means the Internal Revenue Code of 1986, as amended.
VIII. "Company" means BancWest Corporation and, after a Change of
Control, any successor or successors thereto.
IX. "Company LTIP" means the Company's long-term incentive plan as
in effect as of the date hereof.
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X. "Good Reason" means that, on or after a Change of Control,
without Executive's express prior written approval, other than due to
Executive's Permanent Disability or death, the Executive:
(1) Has incurred a reduction in his position, title,
authority or responsibility at the Company, the Bank
and/or the Bank of the West or an adverse change to his
reporting relationships;
(2) Has incurred a reduction in his Base Salary or Target
Bonus or a reduction in employee benefits (including
perquisites, target long-term incentive compensation,
retirement plan and deferred compensation plan
benefits);
(3) Has been notified that his principal place of work will
be relocated to a location outside the City of Honolulu,
Hawaii; or
(4) Is required to work more than 80 days per year outside
of the Company's principal offices in the City of
Honolulu, Hawaii.
The Executive may also terminate his employment for "Good Reason" (x) if the
Company breaches any material provision of this Agreement or (y) for any reason
or no reason during the 30-day period following the first anniversary of any
Change in Control that occurs after the Effective Date. Except as provided in
(5) above, Executive shall have six months from the time Executive first becomes
aware of the existence of Good Reason to resign for Good Reason. For purposes of
this Agreement, any good faith determination of "Good Reason" made by the
Executive shall be conclusive; provided, however, that termination by the
Executive for Good Reason shall be made by delivery to the Board of written
notice, at least 30 days' prior to the effective date of such termination,
specifying the basis for such termination and the particulars thereof and
provided that the Company shall have a reasonable opportunity to cure or
otherwise resolve the problem in question prior to the effective date of such
termination, in which case Good Reason shall not exist.
XI. "New LTIP" means any long-term incentive plan established by the
Company (or any parent or affiliate thereof) after the Effective Date, in which
the Executive participates as of the date in question.
XII. "Permanent Disability" means a physical or mental incapacity
that qualifies the Executive for payments under the Company's or the Bank of the
West's group long-term disability insurance policy or plan.
XIII. "Target Bonus" means the target Bonus established for Executive
under the Company's annual incentive compensation plan, whether expressed as a
percentage of Base Salary or a dollar amount.
