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Exhibit 10(b)
EMPLOYMENT AGREEMENT FOR
Xxxxxx X. Xxxxx, III
Boatmen's Bancshares, Inc.
January 30, 1996
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BOATMEN'S BANCSHARES, INC.
EMPLOYMENT AGREEMENT FOR XXXXXX X. XXXXX, III
This EMPLOYMENT AGREEMENT is made, entered into, and is effective,
pursuant to Compensation Committee approval and ratification by the Board
of Directors, as of January 30, 1996 (the "Effective Date"), by and between
Boatmen's Bancshares, Inc., a Missouri corporation, (the "Company"), and
Xxxxxx X. Xxxxx, III, (the "Executive").
WHEREAS, the Executive is presently employed by the Company in the
capacity of President; and
WHEREAS, the Executive possesses considerable experience and an intimate
knowledge of the business and affairs of the Company, its policies, methods,
personnel, and operations; and
WHEREAS, the Company recognizes that the Executive's contributions
have been substantial and meritorious and, as such, the Executive has
demonstrated unique qualifications to act in an executive capacity for the
Company; and
WHEREAS, the Company is desirous of assuring the continued employment
of the Executive in the above stated capacities, and Executive is desirous of
having such assurance;
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements of the parties set forth in this Agreement, and of
other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
ARTICLE 1. TERM OF EMPLOYMENT
The Company hereby agrees to employ the Executive and the Executive
hereby agrees to continue to serve the Company, in accordance with the terms
and conditions set forth herein, for an initial period of three (3) years,
commencing as of the Effective Date of this Agreement, as indicated above;
subject, however, to earlier termination as expressly provided herein.
The initial three (3) year period of employment automatically shall
be extended for one (1) additional year at the end of the initial three (3)
year term, and then again after each successive year thereafter. However,
either party may terminate this Agreement at the end of the initial
three (3) year period, or at the end of any successive one (1) year term
thereafter, by giving the other party written notice of intent not to
renew, delivered at least three (3) months prior to the end of such
initial period or successive term. In the event such notice of intent
not to renew is properly delivered, this Agreement, along with all
corresponding rights, duties, and covenants, automatically shall expire
at the end of the initial period or successive term then in progress.
However, regardless of the above, if at any time during the initial
period of employment, or successive term, a Change in Control of the
Company occurs (as defined in Article 7 herein), then this Agreement shall
become immediately irrevocable for the longer of: (a) two (2) years
following the effective date of such Change in Control; or (b) until all
obligations of the Company hereunder have been fulfilled, and until all
benefits provided hereunder have been paid.
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ARTICLE 2. POSITION AND RESPONSIBILITIES
During the term of this Agreement, the Executive agrees to serve as
President of the Company. In his capacity as President of the Company, the
Executive shall report directly to the Chairman and Chief Executive
Officer, and shall maintain the level of duties and responsibilities as in
effect as of the Effective Date, or such higher level of duties and
responsibilities as he may be assigned during the term of this Agreement.
The Executive shall have the same status, privileges, and responsibilities
normally inherent in such capacities in financial institutions of similar
size and character.
ARTICLE 3. STANDARD OF CARE
During the term of this Agreement, the Executive agrees to devote
substantially his full time, attention, and energies to the Company's
business and shall not be engaged in any other business activity, whether
or not such business activity is pursued for gain, profit, or other
pecuniary advantage. However, subject to Article 9 herein, the Executive
may serve as a director of other companies so long as such service is not
injurious to the Company. The Executive covenants, warrants, and represents
that he shall:
(a) Devote his full and best efforts to the fulfillment of his
employment obligations; and
(b) Exercise the highest degree of loyalty and the highest standards
of conduct in the performance of his duties.
This Article 3 shall not be construed as preventing the Executive
from investing assets in such form or manner as will not require his services
in the daily operations of the affairs of the companies in which such
investments are made.
ARTICLE 4. COMPENSATION
As remuneration for all services to be rendered by the Executive during
the term of this Agreement, and as consideration for complying with the
covenants herein, the Company shall pay and provide to the Executive the
following:
4.1 BASE SALARY. The Company shall pay the Executive a Base Salary
in an amount which shall be established from time to time by the Board of
Directors of the Company or the Board's designee; provided, however, that
such Base Salary shall not be less than Four Hundred Eighty Five Thousand
Dollars ($485,000.00) per year. This Base Salary shall be paid to the
Executive in equal bimonthly installments throughout the year, consistent
with the normal payroll practices of the Company.
The annual Base Salary shall be reviewed at least annually following
the Effective Date of this Agreement, while this Agreement is in force,
to ascertain whether, in the judgment of the Board or the Board's designee,
such Base Salary should be increased, based primarily on the performance
of the Executive during the year and on the then current rate of
inflation. If so increased, the Base Salary as stated above shall, likewise,
be increased for all purposes of this Agreement.
4.2 ANNUAL BONUS. In addition to his salary, the Executive shall
be entitled to participate in the Company's short-term incentive
program, as such program may exist from time to time, at a level
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commensurate with the Executive's position with the Company, as determined
at the sole discretion of the Compensation Committee.
4.3 LONG-TERM INCENTIVES. The Executive shall be eligible to
participate in the Company's 1996 Stock Incentive Plan, as such shall be
amended or superseded from time to time, at a level commensurate with the
Executive's position, as determined at the sole discretion of the
Compensation Committee.
4.4 RETIREMENT BENEFITS. The Company shall provide to the Executive
participation in all Company qualified defined benefit and defined
contribution retirement plans, subject to the eligibility and participation
requirements of such plans. The Executive's retirement benefits shall not be
less than those that would be provided him under the terms of the
Boatmen's Bancshares, Inc. Retirement Plan for Employees and the Boatmen's
Supplemental Retirement Plan in effect as of the Effective Date, or as such
benefits shall be increased, whether or not such benefits shall be
decreased or eliminated. The obligations of the Company pursuant to this
Section 4.4 shall survive the termination of this Agreement.
4.5 EMPLOYEE BENEFITS. The Company shall provide to the Executive all
benefits to which other executives and employees of the Company are entitled,
as commensurate with the Executive's position, subject to the eligibility
requirements and other provisions of such arrangements. Such benefits shall
include, but shall not be limited to, group term life insurance,
comprehensive health and major medical insurance, dental and life insurance,
and short-term and long-term disability.
4.6 PERQUISITES. The Company shall provide to the Executive, at the
Company's cost, all perquisites which are suitable to the character of
Executive's position with the Company and adequate for the performance
of his duties hereunder.
4.7 RIGHT TO CHANGE PLANS. By reason of Sections 4.5 and 4.6 herein,
the Company shall not be obligated to institute, maintain, or refrain
from changing, amending, or discontinuing any benefit plan, or perquisite,
so long as such changes are similarly applicable to executive employees
generally.
ARTICLE 5. EXPENSES
The Company shall pay or reimburse the Executive for all ordinary
and necessary expenses, in a reasonable amount, which the Executive incurs
in performing his duties under this Agreement including, but not limited
to, travel, entertainment, professional dues and subscriptions, and all
dues, fees, and expenses associated with membership in various professional,
business, and civic associations and societies in which the Executive's
participation is in the best interest of the Company.
ARTICLE 6. EMPLOYMENT TERMINATIONS
6.1 TERMINATION DUE TO RETIREMENT OR DEATH. In the event the
Executive's employment is terminated while this Agreement is in force
by reason of retirement (as defined or provided for under the then
established rules of the Company's tax-qualified retirement plan),
or death, the Executive's benefits shall be determined in accordance
with the Company's retirement, survivor's benefits, insurance, and other
applicable programs of the Company then in effect (provided, however,
that such benefits shall be no less than those set forth in Section 4.4
herein) and, upon the effective date of such termination, the Company's
obligation under this Agreement to provide to the Executive the elements
of pay described in Sections 4.1,
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4.2, and 4.3 shall immediately expire; provided, however, that the
Executive shall receive all rights and benefits that he is vested in,
pursuant to the Plan or Plans described in Section 4.3 herein and other
plans and programs of the Company; and provided further, however, that
any retirement during the periods set forth in Section 7.1 herein shall
be subject to the provisions of Article 7 herein.
6.2 TERMINATION DUE TO DISABILITY. In the event that the Executive
becomes Disabled (as defined below) during the term of this Agreement
and is, therefore, unable to perform his duties herein for more than one
hundred eighty (180) total calendar days during any period of twelve (12)
consecutive months, or in the event of the Board's reasonable expectation
that the Executive's Disability will exist for more than a period of one
hundred eighty (180) calendar days, the Company shall have the right to
terminate the Executive's active employment as provided in this Agreement.
However, the Board shall deliver written notice to the Executive of the
Company's intent to terminate for Disability at least thirty (30) calendar
days prior to the effective date of such termination.
A termination for Disability shall become effective upon the end
of the thirty (30) day notice period. Upon such effective date, the
Company's obligation to provide to the Executive the elements of pay
described in Sections 4.1, 4.2, and 4.3 shall immediately expire;
provided, however, that the Executive shall receive all rights and
benefits that he is vested in, pursuant the plan or plans described in
Section 4.3 herein and to other plans and programs of the Company.
The term "Disability" shall mean, for all purposes of this Agreement,
the incapacity of the Executive, due to injury, illness, disease, or
bodily or mental infirmity, to engage in the performance of substantially
all of the usual duties of employment with the Company as contemplated
by Article 2 herein, such Disability to be determined by the Board of
Directors of the Company upon receipt of and in reliance on competent
medical advice from one (1) or more individuals, selected by the Board,
who are qualified to give such professional medical advice.
It is expressly understood that the Disability of the Executive
for a period of one hundred eighty (180) calendar days or less in the
aggregate during any period of twelve (12) consecutive months, in the
absence of any reasonable expectation that his Disability will exist for
more than such a period of time, shall not constitute a failure by him to
perform his duties hereunder and shall not be deemed a breach or default
and the Executive shall receive full compensation for any such period
of Disability or for any other temporary illness or incapacity during
the term of this Agreement.
6.3 VOLUNTARY TERMINATION BY THE EXECUTIVE. The Executive may
terminate this Agreement at any time by giving the Board of Directors of the
Company written notice of intent to terminate, delivered at least three (3)
months prior to the effective date of such termination.
Upon the effective date of such termination, following the expiration
of the three (3) months notice period, the Company shall pay the Executive
his full Base Salary, at the rate then in effect as provided in Section 4.1
herein, through the effective date of termination, plus all other benefits
to which the Executive has a vested right at that time. In the event that the
terms and provisions of Article 7 herein do not apply to such termination,
the Company and the Executive thereafter shall have no further obligations
under this Agreement except as provided in Section 4.4 and Article 9 herein.
However, in the event the terms and provisions of Article 7 herein apply,
the payments and benefits set forth therein shall apply.
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6.4 INVOLUNTARY TERMINATION BY THE COMPANY WITHOUT CAUSE. At all times
prior to six (6) full calendar months before the effective date of a
Change in Control, or at any time more than two (2) years after the
effective date of a Change in Control, the Board may terminate the
Executive's employment, as provided under this Agreement, at any time,
for reasons other than death or Disability, or for Cause, by notifying
the Executive in writing of the Company's intent to terminate, at least
thirty (30) calendar days prior the effective date of such termination.
Upon the effective date of such termination, following the expiration
of the thirty (30) day notice period, the Company shall pay to the
Executive a lump-sum cash payment equal to the greater of: (a) the Base
Salary then in effect for the remaining term of this Agreement (assuming
no additional extensions of this Agreement's term beyond that in effect
as of the effective date of termination), together with continuation of
health and welfare benefits for the remaining term of this Agreement; or
(b) one (1) full year of his Base Salary in effect as of the effective
date of termination, plus a one (1) year continuation of health and
welfare benefits.
Further, the Company shall pay the Executive all other benefits to
which the Executive has a vested right at the time, according to the
provisions of the governing plan or program. The Company and the
Executive thereafter shall have no further obligations under this
Agreement except as provided in Section 4.4 and Article 9 herein.
If the Executive's employment is terminated during the periods
set forth in Section 7.1 herein, the Executive shall be entitled to
receive the benefits provided in Section 7.1 herein in lieu of the
benefits set forth in this Section 6.4.
6.5 TERMINATION FOR CAUSE. Nothing in this Agreement shall be
construed to prevent the Board from terminating the Executive's
employment under this Agreement for "Cause."
"Cause" shall be defined as conduct of the Executive which is
finally adjudged to be knowingly fraudulent, deliberately dishonest
or willful misconduct. The Company's Board of Directors, by majority
vote, shall make the determination of whether Cause exists, after
providing the Executive with notice of the reasons the Board believes
Cause may exist and after giving the Executive the opportunity to
respond to the allegation that Cause exists.
In the event this Agreement is terminated by the Board for Cause,
the Company shall pay the Executive his Base Salary through the effective
date of the employment termination and the Executive shall immediately
thereafter forfeit all rights and benefits (other than vested benefits)
he would otherwise have been entitled to receive under this Agreement.
The Company and the Executive thereafter shall have no further obligations
under this Agreement except as provided in Article 9 herein.
6.6 TERMINATION FOR GOOD REASON. At any time during the term of this
Agreement, the Executive may terminate this Agreement for Good Reason
(as defined below) by giving the Board of Directors of the Company thirty (30)
calendar days written notice of intent to terminate, which notice sets
forth in reasonable detail the facts and circumstances claimed to provide
a basis for such termination.
Upon the expiration of the thirty (30) day notice period, the
Good Reason termination shall become effective, and the Company shall pay
and provide to the Executive the benefits set forth in this Section 6.6
(or, in the event of termination for Good Reason within the six (6) full
calendar month period prior to the
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effective date of a Change in Control, or within two (2) years following the
effective date of a Change in Control, the benefits set forth in
Section 7.1 herein).
Good Reason shall mean, without the Executive's express written
consent, the occurrence of any one or more of the following:
(a) The assignment of the Executive to duties materially
inconsistent with the Executive's authorities, duties,
responsibilities, and status (including offices, titles, and
reporting requirements) as an officer of the Company, or a
reduction or alteration in the nature or status of the
Executive's authorities, duties, or responsibilities from
those in effect during the immediately preceding fiscal year;
(b) Without the Executive's consent, the Company's requiring the
Executive to be based at a location which is at least fifty (50)
miles further from the Executive's primary residence at the
time such requirement is imposed than is such residence from the
Company's office at which the Executive is primarily rendering
services at such time, except for required travel on the
Company's business to an extent substantially consistent with
the Executive's business obligations as of the Effective Date;
(c) A reduction by the Company in the Executive's Base
Salary as in effect on the Effective Date, as provided
in Section 4.1 herein, or as the same shall be increased
from time to time;
(d) A material reduction in the Executive's level of participation
in any of the Company's short- and/or long-term incentive
compensation plans, or employee benefit or retirement
plans, policies, practices, or arrangements in which the
Executive participates as of the Effective Date; provided,
however, that reductions in the levels of participation in
any such plans shall not be deemed to be "Good Reason" if
the Executive's reduced level of participation in each such
program remains substantially consistent with the average
level of participation of other executives who have positions
commensurate with the Executive's position; or
(e) The failure of the Company to obtain a satisfactory
agreement from any successor to the Company to assume
and agree to perform this Agreement, as contemplated in
Section 10.1 herein.
Upon a termination of the Executive's employment for Good
Reason at any time other than the six (6) full calendar month
period prior to the effective date of a Change in Control, or the
two (2) years period following the effective date of a Change in
Control, the Executive shall be entitled to receive the same
payments and benefits as he is entitled to receive following an
involuntary termination of his employment by the Company without
Cause, as specified in Section 6.4 herein. The payment of Base
Salary and pro rata Bonus shall be made to the Executive within
thirty (30) calendar days following the effective date of
employment termination. Upon a termination for Good Reason within
the six (6) full calendar month period prior to the effective
date of a Change in Control, or within the two (2) years
following the effective date of a Change in Control, the
Executive shall be entitled to receive the payments and benefits
set forth in Section 7.1 herein in lieu of those set forth in
this Section 6.6.
The Executive's right to terminate employment for Good Reason
shall not be affected by the Executive's incapacity due to physical or
mental illness. The Executive's continued employment shall not
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constitute consent to, or a waiver of rights with respect to, any
circumstance constituting Good Reason herein.
ARTICLE 7. CHANGE IN CONTROL
7.1 EMPLOYMENT TERMINATIONS IN CONNECTION WITH A CHANGE IN CONTROL.
In the event of a Qualifying Termination (as defined below) within six (6)
full calendar months prior to the effective date of a Change in Control, or
within two years following the effective date of a Change in Control, then
in lieu of all other benefits provided to the Executive under the
provisions of this Agreement (other than the first sentence of Section 4.4
herein and without derogation of his rights to receive vested benefits
under the Company's Amended 1982 Long Term Incentive Plan and the plan or
plans described in Section 4.3 herein), the Company shall pay to the
Executive and provide him with the following severance benefits (hereinafter
referred to as the "Severance Benefits"):
(a) An amount equal to three (3) times the highest rate of
the Executive's annualized Base Salary rate in effect at
any time up to and including the effective date of
termination;
(b) An amount equal to three (3) times the greater of: (i) the
Executive's average annual bonus earned over the three (3)
fiscal years prior to the Change in Control (whether or not
deferred); or (ii) the Executive's target bonus established
for the fiscal year in which the Executive's effective date
of termination occurs;
(c) An amount equal to the Executive's unpaid Base Salary
and accrued vacation pay through the effective date of
termination;
(d) A continuation of the welfare benefits of medical insurance,
dental insurance, and life insurance for three (3) full years
after the effective date of termination. These benefits shall be
provided to the Executive at the same premium cost, and at the
same coverage level, as in effect as of the Executive's
effective date of termination. However, in the event the premium
cost and/or level of coverage shall change for all employees of
the Company, the cost and/or coverage level, likewise, shall
change for the Executive in a corresponding manner.
The continuation of these welfare benefits shall be discontinued
prior to the end of the three (3) year period in the event the
Executive has available substantially similar benefits from a
subsequent employer, as determined by the Company's Board of
Directors or the Board's designee.
(e) A lump-sum cash payment of the actuarial present value equivalent
of the aggregate benefits accrued by the Executive as of the
effective date of termination under the terms of any and all
supplemental retirement plans in which the Executive participates
(subject to the provisions of the second sentence of Section 4.4
herein). For this purpose, such benefits shall be calculated
under the assumption that the Executive's employment continued
following the effective date of termination for three (3) full
years (i.e., three (3) additional years of age and service credits
shall be added); provided, however, that for purposes of
determining "final average pay" under such programs, the
Executive's actual pay history as of the effective date of
termination shall be used.
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(f) A lump-sum cash payment of the entire balance of the Executive's
compensation which has been deferred under the Company's
nonqualified deferred compensation plan(s) together with all
interest that has been credited with respect to such deferred
compensation balance.
For purposes of this Article 7, a Qualifying Termination shall mean
any termination of the Executive's employment OTHER THAN: (1) by the
Company for Cause (as provided in Section 6.5 herein); (2) by reason of
death, Disability (as provided in Section 6.2 herein), or voluntary
retirement; provided, however, that a termination which qualifies as a
retirement and which occurs within the thirty (30) day period described
in clause (3) of this Section 7.1 below will be deemed to be a Qualifying
Termination); or (3) by the Executive without Good Reason (as provided
in Section 6.6 herein, but specifically excluding voluntary terminations
within the period beginning on the first anniversary of the effective date
of the Change in Control and ending thirty (30) days after such date--i.e.,
any voluntary termination by the Executive within such period shall be
deemed to be a Qualifying Termination).
7.2 DEFINITION OF "CHANGE IN CONTROL".
A Change in Control of the Company shall be deemed to have occurred as
of the first day any one or more of the following conditions shall have
been satisfied:
(a) Any individual, corporation (other than the Company),
partnership, trust, association, pool, syndicate, or any other
entity or any group of persons acting in concert becomes the
beneficial owner, as that concept is defined in Rule 13d-3
promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, of securities of the Company
possessing twenty percent (20%) or more of the voting power for
the election of directors of the Company;
(b) There shall be consummated any consolidation, merger, or other
business combination involving the Company or the securities of
the Company in which holders of voting securities of the Company
immediately prior to such consummation own, as a group,
immediately after such consummation, voting securities of the
Company (or, if the Company does not survive such transaction,
voting securities of the corporation surviving such transaction)
having less than sixty percent (60%) of the total voting power
in an election of directors of the Company (or such other
surviving corporation);
(c) During any period of two (2) consecutive years, individuals who
at the beginning of such period constitute the directors of the
Company cease for any reason to constitute at least a majority
thereof unless the election, or the nomination for election by
the Company's shareholders, of each new director of the Company
was approved by a vote of at least two-thirds (2/3) of the
directors of the Company then still in office who were directors
of the Company at the beginning of any such period; or
(d) There shall be consummated any sale, lease, exchange, or other
transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the
Company (on a consolidated basis) to a party which is not
controlled by or under common control with the Company.
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7.3 EXCISE TAX EQUALIZATION PAYMENT. In the event that the Executive
becomes entitled to Severance Benefits or any other payment or benefit
under this Agreement, or under any other agreement with or plan of the
Company (in the aggregate, the "Total Payments"), if any of the Total
Payments will be subject to the tax (the "Excise Tax") imposed by
Section 4999 of the Code (or any similar tax that may hereafter be
imposed), the Company shall pay to the Executive in cash an additional
amount (the "Gross-Up Payment") such that the net amount retained by the
Executive after deduction of any Excise Tax upon the Total Payments and
any Federal, state and local income tax and Excise Tax upon the Gross-Up
Payment provided for by this Section 7.3 (including FICA and FUTA), shall be
equal to the Total Payments. Such payment shall be made by the Company to
the Executive as soon as practical following the effective date of
termination, but in no event beyond thirty (30) days from such date.
7.4 TAX COMPUTATION. For purposes of determining whether any of the
Total Payments will be subject to the Excise Tax and the amounts of such
Excise Tax:
(a) Any other payments or benefits received or to be received by the
Executive in connection with a Change in Control of the Company
or the Executive's termination of employment (whether pursuant
to the terms of this Agreement or any other plan, arrangement,
or agreement with the Company, or with any person (which shall
have the meaning set forth in Section 3(a)(9) of the Securities
Exchange Act of 1934, including a "group" as defined in
Section 13(d) therein) whose actions result in a Change in Control
of the Company or any person affiliated with the Company or such
persons) shall be treated as "parachute payments" within the
meaning of Section 280G(b)(2) of the Code, and all "excess
parachute payments" within the meaning of Section 280G(b)(1)
shall be treated as subject to the Excise Tax, unless in the
opinion of tax counsel as supported by the Company's independent
auditors and acceptable to the Executive, such other payments
or benefits (in whole or in part) do not constitute parachute
payments, or unless such excess parachute payments (in whole or
in part) represent reasonable compensation for services actually
rendered within the meaning of Section 280G(b)(4) of the Code
in excess of the base amount within the meaning of
Section 280G(b)(3) of the Code, or are otherwise not subject
to the Excise Tax;
(b) The amount of the Total Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of:
(i) the total amount of the Total Payments; or (ii) the amount
of excess parachute payments within the meaning of
Section 280G(b)(1) (after applying clause (a) above); and
(c) The value of any noncash benefits or any deferred payment
or benefit shall be determined by the Company's independent
auditors in accordance with the principles of Sections
280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay Federal income taxes at the highest
marginal rate of Federal income taxation in the calendar year in which
the Gross-Up Payment is to be made, and state and local income taxes at
the highest marginal rate of taxation in the state and locality of the
Executive's residence on the effective date of termination, net of the
maximum reduction in Federal income taxes which could be obtained from
deduction of such state and local taxes.
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7.5 SUBSEQUENT RECALCULATION. In the event the Internal Revenue
Service adjusts the computation of the Company under Section 7.4 herein
so that the Executive did not receive the greatest net benefit, the
Company shall reimburse the Executive for the full amount necessary to
make the Executive whole, plus a market rate of interest, as determined
by the Committee.
ARTICLE 8. OUTPLACEMENT ASSISTANCE
Following a Qualifying Termination (as defined in Section 7.1
herein) the Executive shall be reimbursed by the Company for the
costs of all outplacement services obtained by the Executive; provided,
however, that the total reimbursement shall be limited to an amount equal
to fifteen percent (15%) of the Executive's Base Salary as of the effective
date of termination.
ARTICLE 9. NONCOMPETITION
9.1 PROHIBITION ON COMPETITION. Without the prior written consent
of the Company, during the term of this Agreement, and for twelve (12)
months following the expiration or other termination of this Agreement
the Executive shall not, as an employee or an officer, engage directly or
indirectly in any business or enterprise which is "in competition" with the
Company or its successors or assigns. For purposes of this Agreement, a
business or enterprise will be deemed to be "in competition" if it is
engaged in any significant business activity of the Company or its
subsidiaries within the state (or states, if changed from time to time)
within which, during the two (2) years immediately preceding such
termination of employment, the Executive has been principally engaged in
business for the Company or its subsidiaries.
However the Executive shall be allowed to purchase and hold for
investment less than three percent (3%) of the shares of any corporation
whose shares are regularly traded on a national securities exchange
or in the over-the-counter market.
9.2 DISCLOSURE OF INFORMATION. The Executive recognizes that he
has access to and knowledge of certain confidential and proprietary
information of the Company which is essential to the performance of his
duties under this Agreement. The Executive will not, during or after the
term of his employment by the Company, in whole or in part, disclose such
information to any person, firm, corporation, association, or other entity
for any reason or purpose whatsoever, nor shall he make use of any such
information for his own purposes.
9.3 COVENANTS REGARDING OTHER EMPLOYEES. During the term of this
Agreement, and for a period of twenty four (24) months following the
expiration of this Agreement, the Executive agrees not to attempt to induce
any employee of the Company to terminate his or her employment with the
Company, to accept employment with any competitor of the Company, or to
interfere in a similar manner with the business of the Company.
ARTICLE 10. ASSIGNMENT
10.1 ASSIGNMENT BY COMPANY. This Agreement may and shall be assigned
or transferred to, and shall be binding upon and shall inure to the benefit
of, any successor of the Company, and any such successor shall be deemed
substituted for all purposes for the "Company" under the terms of this
Agreement. As used in this Agreement, the term "successor" shall mean any
person, firm, corporation, or business entity which at any time, whether by
merger, purchase, or otherwise, acquires all or substantially all of the
assets
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or the business of the Company. Notwithstanding such assignment, the
Company shall remain, with such successor, jointly and severally liable for
all its obligations hereunder.
Failure of the Company to obtain the agreement of any successor to be
bound by the terms of this Agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement, and shall immediately
entitle the Executive to compensation from the Company in the same amount
and on the same terms as the Executive would be entitled in the event of a
termination of employment for Good Reason within two (2) years after a
Change in Control, as provided in Article 7 herein. Except as herein
provided, this Agreement may not otherwise be assigned by the Company.
10.2 ASSIGNMENT BY EXECUTIVE. The services to be provided by the
Executive to the Company hereunder are personal to the Executive, and the
Executive's duties may not be assigned by the Executive; provided, however
that this Agreement shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, and
administrators, successors, heirs, distributees, devisees, and legatees. If
the Executive dies while any amounts payable to the Executive hereunder
remain outstanding, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to the
Executive's devisee, legatee, or other designee or, in the absence of such
designee, to the Executive's estate.
ARTICLE 11. DISPUTE RESOLUTION AND NOTICE
11.1 DISPUTE RESOLUTION. The Executive shall have the right and
option to elect to have any good faith dispute or controversy arising under
or in connection with this Agreement settled by litigation or by
arbitration.
If arbitration is selected, such proceeding shall be conducted before
a panel of three (3) arbitrators sitting in a location selected by the
Executive within fifty (50) miles from the location of his principal place
of employment, in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the award of the
arbitrators in any court having competent jurisdiction.
11.2 NOTICE. Any notices, requests, demands, or other communications
provided for by this Agreement shall be sufficient if in writing and if
sent by registered or certified mail to the Executive at the last address
he has filed in writing with the Company or, in the case of the Company, at
its principal offices.
ARTICLE 12. MISCELLANEOUS
12.1 ENTIRE AGREEMENT. This Agreement supersedes any prior agreements
or understandings, oral or written, between the parties hereto, with
respect to the subject matter hereof, and constitutes the entire agreement
of the parties with respect thereto. Without limiting the generality of the
foregoing sentence, this Agreement completely replaces and supersedes any
and all prior employment agreements entered into by and between the Company
and the Executive, and all amendments thereto, in their entirety.
12.2 MODIFICATION. This Agreement shall not be varied, altered,
modified, canceled, changed, or in any way amended except by mutual
agreement of the parties in a written instrument executed by the parties
hereto or their legal representatives.
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12.3 SEVERABILITY. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any
reason, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect.
12.4 COUNTERPARTS. This Agreement may be executed in one (1) or more
counterparts, each of which shall be deemed to be an original, but all of
which together will constitute one and the same Agreement.
12.5 TAX WITHHOLDING. The Company may withhold from any benefits
payable under this Agreement all Federal, state, city, or other taxes as
may be required pursuant to any law or governmental regulation or ruling.
12.6 BENEFICIARIES. The Executive may designate one or more persons
or entities as the primary and/or contingent beneficiaries of any amounts
to be received under this Agreement. Such designation must be in the form
of a signed writing acceptable to the Board or the Board's designee. The
Executive may make or change such designation at any time.
12.7 PAYMENT OBLIGATIONS ABSOLUTE. The Company's obligation to make
the payments and the arrangements provided for herein shall be absolute and
unconditional, and shall not be affected by any circumstances, including,
without limitation, any offset, counterclaim, recoupment, defense, or other
right which the Company may have against the Executive or anyone else. All
amounts payable by the Company hereunder shall be paid without notice or
demand. Each and every payment made hereunder by the Company shall be
final, and the Company shall not seek to recover all or any part of such
payment from the Executive or from whomsoever may be entitled thereto, for
any reasons whatsoever.
The Executive shall not be obligated to seek other employment in
mitigation of the amounts payable or arrangements made under any provision
of this Agreement, and the obtaining of any such other employment shall in
no event effect any reduction of the Company's obligations to make the
payments and arrangements required to be made under this Agreement, except
to the extent provided in Section 7.1(d) herein.
12.8 CONTRACTUAL RIGHTS TO BENEFITS. This Agreement establishes and
vests in the Executive a contractual right to the benefits to which he is
entitled hereunder. However, nothing herein contained shall require or be
deemed to require, or prohibit or be deemed to prohibit, the Company to
segregate, earmark, or otherwise set aside any funds or other assets, in
trust or otherwise, to provide for any payments to be made or required
hereunder.
12.9 PAYMENT OF LEGAL FEES. To the extent permitted by law, the
Company shall pay all legal fees, costs of arbitration and litigation,
prejudgment interest, and other expenses incurred in good faith by the
Executive as a result of the Company's refusal to provide the benefits to
which the Executive becomes entitled under this Agreement, or as a result
of the Company's contesting the validity, enforceability, or interpretation
of this Agreement, or as a result of any conflict between the parties
pertaining to this Agreement.
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ARTICLE 13. GOVERNING LAW
To the extent not preempted by Federal law, the provisions of this
Agreement shall be construed and enforced in accordance with the laws of
the state of Missouri.
IN WITNESS WHEREOF, the Executive and the Company have executed this
Agreement, pursuant to Compensation Committee approval and ratification by
the Board of Directors, as of the Effective Date.
BOATMEN'S BANCSHARES, INC. EXECUTIVE:
By: /s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxx X. Xxxxx, III
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