FORM OF AGREEMENT Exhibit 10d
AMENDED AND RESTATED
EMPLOYMENT CONTRACT
Employment Agreement dated as of January 17, 1986 as amended
and restated December 1, 1990, further amended effective December
1, 1993 and further amended and restated May 18, 1994, and hereby
further amended and restated in its entirety herein March 20,
1996, between <> of <> (the
"Executive"), and ST. XXXXXX LIGHT & POWER COMPANY, a Missouri corporation
(the "Company") with its principal office at 000 Xxxxxxx Xxxxxx, Xx. Xxxxxx,
Xxxxxxxx 00000.
In consideration of the agreements and covenants contained
herein, the Executive and the Company hereby agree as follows:
ARTICLE I
EMPLOYMENT
SECTION 1.01. POSITION; TERM; RESPONSIBILITIES. The
Company shall employ the Executive as its <> for a term
commencing on December 1, 1990 and ending on November 30, 1993, which term
shall continue for successive one-year periods thereafter unless (i)
the Company shall, at least two years and one hundred eighty days
prior to the end of any such period, deliver to the Executive a
written notice of its intention to terminate this Agreement at
the end of such period or (ii) the Executive shall, at least 60
days prior to the end of any such period, deliver to the Company
a written notice of his intention to terminate this Agreement at
the end of such period. Notwithstanding the foregoing, the
Executive may terminate this Agreement upon not less than 60 days
prior written notice as of any date following the date on which
the Employee has both become eligible for early retirement under
the St. Xxxxxx Light & Power Company Restated Pension Plan for
Non-Bargaining Employees (the "Salaried Plan") and has attained
age 62. The period during which this Agreement shall be in
effect pursuant to the first sentence of this paragraph is
hereinafter referred to as the "Employment Period." The
Executive shall be located at the Company's offices in St.
Xxxxxx, Missouri, and shall not be required to render services to
the Company hereunder from any other location without his
consent. The Executive shall report directly to the President
and Chief Executive Officer and shall have <>.
Notwithstanding the foregoing, the Chief Executive Officer may assign the
Executive from time to time additional responsibilities of an executive
nature which may be of a type theretofore rendered by other
executive officers of the Company or which may be newly created
executive responsibilities determined by the Board of Directors,
which additional responsibilties shall be rendered on a direct
reporting basis to the Chief Executive Officer. Such additional
responsibilities may require a change in the Executive's
corporate title to better reflect the responsibilities to be
performed by him. The Executive agrees to be employed by the
Company in such capacities for the Employment Period, subject to
all the covenants and conditions hereinafter set forth.
ARTICLE II
COMPENSATION
SECTION 2.01. COMPENSATION. As compensation for his
services hereunder, the Company shall pay to the Executive during
the Employment Period an annual salary (the "Annual Salary"),
payable in installments in accordance with the Company's normal
payment schedule for senior management of the Company. The
Annual Salary as of February 1, 1996 shall be <>. In no
event shall the Annual Salary be reduced during the Employment
Period. The Board may, in its discretion, increase the Annual
Salary from time to time above the Annual Salary required by this
Section 2.01. The increased salary then shall be the Annual
Salary and shall not be reduced during the Employment Period.
SECTION 2.02. INCAPACITY. If at any time during the
Employment Period the Executive is unable to perform his duties
hereunder by reason of illness, accident or other disability (as
confirmed by competent medical evidence), during the first six
months of such incapacity he shall be entitled to receive the
compensation to which he would be entitled pursuant to Section
2.01 hereof, and during any remaining period of such incapacity,
he shall be entitled to receive 75% of such compensation. If the
Executive shall recover and shall resume the performance of his
duties hereunder following any period of incapacity during the
term of this Agreement, the Executive shall be entitled to
receive the compensation to which he would be entitled pursuant
to Section 2.01 hereof. Notwithstanding the foregoing provisions
of this Section 2.02, the amounts payable to the Executive under
this Section 2.02 shall be reduced by any amounts received by the
Executive for the same time periods with respect to any such
incapacity pursuant to any insurance policy, plan or other
employee benefit provided to the Executive by the Company at its
expense, and if any such policy, plan or benefit shall be
provided to the Executive at the expense of the Company and the
Executive, the amount of the reduction provided for in this
sentence shall be equitably determined by the Board on the basis
of the proportionate expense borne by the Company. For purposes
of this Section 2.02, more than one occurrence of incapacity
during the Employment Period shall be treated as a single period
of incapacity regardless of any interruption in such incapacity,
except that a new and separate period of incapacity shall be
deemed to have commenced if (i) the illness, accident or other
disability giving rise to the latest occurrence of incapacity is
totally unrelated to any prior incapacity or (ii) notwithstanding
that the illness, accident or disability giving rise to the
latest occurrence of incapacity is related to any prior
incapacity, the Executive has performed his duties hereunder for
a continuous period of at least six months since the termination
of such prior incapacity.
SECTION 2.03. OTHER EMPLOYEE BENEFITS. The Executive shall
be entitled to participate in all benefit plans maintained by the
Company on behalf of its senior executives, including, without
limiting the generality of the foregoing, the Company's Non-
Bargaining Plans for retirement, hospitalization and death
benefits, and similar or other plans in accordance with the terms
of such plans as from time to time in effect and applicable to
senior executives of the Company, and shall be entitled to
additional benefits, including vacations, holidays, sick leave
and leave of absence, in accordance with the Company's policies
with respect thereto for its senior executives as from time to
time in effect. The Executive and the Company agree that, should
this Agreement be terminated by either party hereto for any
reason while the Executive is suffering from any incapacity as
contemplated by Section 2.02, the Executive shall be treated as
an employee of the Company during the duration of such incapacity
for purposes of receipt of benefits under the Company's long-term
disability plan.
ARTICLE III
TERMINATION OF EMPLOYMENT
SECTION 3.01. EVENT OF TERMINATION. In the event that
during the Employment Period there should occur the "Serious
Misconduct" (as hereinafter defined) of the Executive, the
Company (acting by resolution adopted by a majority of the
directors then members of the Board) may elect to terminate the
rights and obligations of the parties hereunder by written notice
to the Executive. "Serious Misconduct" shall mean embezzlement
or misappropriation of corporate funds, other acts of dishonesty,
significant activities harmful to the reputation of the Company,
willful refusal to perform the duties properly assigned to the
Executive pursuant to Article I hereof or significant violation
of any statutory or common law duty of loyalty to the Company.
Notwithstanding the foregoing, during the 3-year period beginning
on the date a "change of control of the Company" [as defined in
Section 3.04 D(1) below] occurs, the Company may not terminate
the rights and obligations of the parties hereunder without first
having obtained either a written admission of such Serious
Misconduct from the Executive or a final judicial determination
that the Executive committed such Serious Misconduct.
SECTION 3.02. DEATH. In the event of the death of the
Executive during the Employment Period, his beneficiaries (who
shall be designated in a writing delivered by the Executive to
the Company) shall be entitled to receive any accrued and unpaid
compensation under Sections 2.01 and 2.02.
SECTION 3.03. WRONGFUL TERMINATION. In the event that the
Company shall terminate this Agreement prior to the end of the
Employment Period for any reason other than as set forth in
Section 3.01, the Executive shall be entitled to receive,
immediately upon such termination in a single lump sum payment,
the aggregate amount of compensation to which he would be
entitled under Section 2.01 for the balance of the Employment
Period. For all purposes of this Agreement, any substantial
diminution of the responsibilities of the Executive, the
assignment to the Executive of duties of the type not to be
performed by the Executive hereunder, any requirement that the
Executive perform any significant portion of his services at a
location outside St. Xxxxxx, Missouri or any other breach of this
Agreement shall, at the Executive's option, be deemed to be a
termination of this Agreement by the Company for reasons other
than Serious Misconduct.
SECTION 3.04. CHANGE OF CONTROL. Notwithstanding any other
provision of this Agreement to the contrary, should either (i)
the Company discharge, layoff or otherwise terminate the
Executive's employment with the Company whether with or without
the Executive's consent for any reason other than Serious
Misconduct pursuant to Section 3.01 hereof or (ii) the Employee
resign or otherwise terminate his employment with the Company
after the date which is 180 days after the date on which a change
of control of the Company occurs for any reason other than the
Executive's death, disability or retirement after becoming
eligible for early retirement benefits under the Salaried Plan
and attaining age 62, in either case of (i) or (ii) above within
three (3) years after a change of control of the Company, the
Company shall do the following:
A. LUMP SUM CASH PAYMENT: On or before the
Executive's last day of employment with the Company, or its
subsidiaries, or as soon thereafter as possible, the Company
shall pay to the Executive as compensation for services
rendered, a lump sum cash amount (subject to the usual
withholding taxes) equal to (1) three (3) times the sum of
the Executive's Annual Salary at the rate in effect
immediately prior to the change of control plus (2) an
amount equal to the compensation (at the Executive's rate of
Annual Salary in effect immediately prior to the change of
control) payable for any period for which the Executive
could have, immediately prior to the date of his termination
of employment, been on vacation and received such
compensation, determined under the Company's vacation pay
plan or program covering the Executive immediately prior to
the change of control. If the time from the Executive's
last day of employment with the Company to the Executive's
65th birthday is less than 36 months, there shall be a
proportionate reduction of the portion of said payment
computed under clause (1) of the preceding sentence.
B. LIFE AND HEALTH INSURANCE; LONG-TERM DISABILITY
COVERAGE. The Executive's participation in, and entitlement
to benefits under: (1) the life insurance plan of the
Company; (2) all the health insurance plan or plans of the
Company or its subsidiaries, including but not limited to
those providing major medical and hospitalization benefits,
dental benefits and vision benefits; and (3) the Company's
long-term disability plan or plans; as all such plans
existed immediately prior to the change of control shall
continue as though he remained employed by the Company or
its subsidiaries for an additional period of three (3) years
or until the date of his 65th birthday, whichever is
earlier. To the extent such participation or entitlement is
not possible for any reason whatsoever, equivalent benefits
shall be provided at the Company's cost.
C. EXCISE TAX-ADDITIONAL PAYMENT. (1) Notwithstanding
anything in this Agreement or any written or unwritten
policy of the Company or its subsidiaries to the contrary,
(a) if it shall be determined that any payment or
distribution by the Company or its subsidiaries to or for
the benefit of the Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this
Agreement, any other agreement between the Company or its
subsidiaries and the Executive or otherwise (a "Payment"),
would be subject to the excise tax imposed by Section 4999
of the Internal Revenue Code of 1986, as amended, (the
"Code") or any interest or penalties with respect to such
excise tax (such excise tax, together with any such interest
and penalties, are hereinafter collectively referred to as
the "Excise Tax"), or (b) if the Executive shall otherwise
become obligated to pay the Excise Tax in respect of a
Payment, then the Company shall pay to the Executive an
additional payment (a "Gross-Up Payment") in an amount such
that after payment by the Executive of all taxes (including
any interest or penalties imposed with respect to such
taxes), including any Excise Tax, imposed upon the Gross-Up
Payment, the Executive retains an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon such Payment.
(2) All determinations and computations required to be
made under this paragraph C, including whether a Gross-Up
Payment is required under clause (a) of paragraph C(1)
above, and the amount of any Gross-Up Payment, shall be made
by the Company's regularly engaged independent certified
public accountants (the "Accounting Firm"). The Company
shall cause the Accounting Firm to provide detailed
supporting calculations both to the Company and the
Executive within 15 business days after such determination
or computation is requested by the Executive. Any initial
Gross-Up Payment determined pursuant to this paragraph C(2)
shall be paid by the Company or the subsidiary to the
Executive within 5 days of the receipt of the Accounting
Firm's determination. A determination that no Excise Tax is
payable by the Executive shall not be valid or binding
unless accompanied by a written opinion of the Accounting
Firm to the Executive that the Executive has substantial
authority not to report any Excise Tax on his federal income
tax return. Any determination by the Accounting Firm shall
be binding upon the Company, its subsidiaries and the
Executive, except to the extent the Executive becomes
obligated to pay an Excise Tax in respect of a Payment. In
the event that the Company or the subsidiary exhausts or
waives its remedies pursuant to paragraph C(3) and the
Executive thereafter shall become obligated to make a
payment of any Excise Tax, and if the amount thereof shall
exceed the amount, if any, of any Excise Tax computed by the
Accounting Firm pursuant to this paragraph C(2) in respect
to which an initial Gross-Up Payment was made to the
Executive, the Accounting Firm shall within 15 days after
Notice thereof determine the amount of such excess Excise
Tax and the amount of the additional Gross-Up Payment to the
Executive. All expenses and fees of the Accounting Firm
incurred by reason of this paragraph C(2) shall be paid by
the Company.
(3) The Executive shall notify the Company in writing
of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of a
Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than 10 business days after the
Executive knows of such claim and shall apprise the Company
of the nature of such claim and the date on which such claim
is requested to be paid. The Executive shall not pay such
claim prior to the expiration of the 30-day period following
the date on which it gives such notice to the Company (or
such shorter period ending on the date that any payment of
taxes with respect to such claim is due). If the Company
notifies the Executive in writing prior to the expiration of
such period that it desires to contest such claim, the
Executive shall:
(a) give the Company any information reasonably
requested relating to such claim,
(b) take such action in connection with
contesting such claim as the Company shall reasonably
request in writing from time to time, including,
without limitation, accepting legal representation with
respect to such claim by an attorney reasonably
selected by the Company,
(c) cooperate with the Company in good faith in
order effectively to contest such claim,
(d) permit the Company to participate in any
proceedings relating to such claim;
PROVIDED, HOWEVER, that the Company shall bear and pay
directly all costs and expenses (including additional
interest and penalties) incurred in connection with such
contest and shall indemnify and hold the Executive harmless,
on an after-tax basis, for any Excise Tax or income tax,
including interest and penalties with respect thereto,
imposed as a result of such representation and payment of
costs and expenses. Without limitation on the foregoing
provisions of this paragraph C, the Company shall control
all proceedings taken in connection with such contest and,
at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such
claim and may, at its sole option, either direct the
Executive to pay the tax claimed and xxx for a refund or
contest the claim in any permissible manner, and the
Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court
of initial jurisdiction and in one or more appellate courts,
as the Company or the subsidiary shall determine; PROVIDED,
HOWEVER, that if the Company or the subsidiary directs the
Executive to pay such claim and xxx for a refund, the
Company or the subsidiary shall advance the amount of such
payment to the Executive, on an interest-free basis and
shall indemnify and hold the Executive harmless, on an after-
tax basis, from any Excise Tax or income tax, including
interest or penalties with respect thereto, imposed with
respect to such advance or with respect to any imputed
income with respect to such advance; and FURTHER PROVIDED,
that any extension of the statute of limitations relating to
payment of taxes for the taxable year of the Executive with
respect to which such contested amount is claimed to be due
is limited solely to such contested amount. Furthermore,
control of the contest by the Company or the subsidiary
shall be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder and the Executive shall
be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any
other taxing authority.
(4) If, after the receipt by the Executive of an
amount advanced by the Company or the subsidiary pursuant to
paragraph C(2), the Executive becomes entitled to receive
any refund with respect to such claim, the Executive shall
(subject to compliance with the requirements of this
paragraph C by the Company) promptly pay to the Company or
the subsidiary the amount of such refund (together with any
interest paid or credited thereon after taxes applicable
thereto). If, after the receipt by the Executive of an
amount advanced by the Company or the subsidiary pursuant to
paragraph C(2), a determination is made that the Executive
shall not be entitled to any refund with respect to such
claim and the Company does not notify the Executive in
writing of its intent to contest such denial or refund prior
to the expiration of 30 days after such determination, then
such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall off-set, to
the extent thereof, the amount of Gross-Up Payment required
to be paid.
D. DEFINITIONS. (1) CHANGE OF CONTROL. For the
purpose of this Agreement, a "change of control" of the
Company shall be deemed to have taken place if:
(1) the acquisition by any individual, entity or group
(a "Person"), including any "person" within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934 (the "Exchange Act"), of beneficial ownership within
the meaning of Rule 13d-3 promulgated under the Exchange
Act, of 20 percent or more of the then outstanding shares of
Common Stock (the "Outstanding Common Stock"); provided that
the following acquisitions shall not constitute a Change of
Control: (A) any acquisition directly from the Company
(excluding any acquisition resulting from the exercise of a
conversion or exchange privilege in respect of outstanding
convertible or exchangeable securities), (B) any acquisition
by the Company, (C) any acquisition by an employee benefit
plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company, (D)
any acquisition by any corporation pursuant to a
reorganization, merger or consolidation involving the
Company, if, immediately after such reorganization, merger
or consolidation, each of the conditions described in
clauses (i), (ii) and (iii) of subsection (3) of this
Section 8 shall be satisfied; and provided further, that for
purposes of clause (B), if any Person (other than the
Company or any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation
controlled by the Company) shall become the beneficial owner
of 20 percent or more of the Outstanding Common Stock by
reason of an acquisition by the Company, and such Person
shall, after such acquisition by the Company, become the
beneficial owner of any additional shares of the Outstanding
Common Stock and such beneficial ownership is publicly
announced, such additional beneficial ownership shall
constitute a Change of Control;
(2) individuals who, immediately after the Company's
1994 Annual Meeting of Shareholders, constitute the Board of
Directors (the "Incumbent Board"), cease for any reason to
constitute at least a majority of the Board; provided that
any individual who becomes a director subsequent to the date
of the Company's 1994 Annual Meeting of Shareholders whose
election, or nomination for election by the Company's
shareholders, was approved by the vote of at least 66-2/3
percent of the directors then comprising the Incumbent Board
shall be deemed to have been a member of the Incumbent
Board; and provided further, that no individual who was
initially elected as a director as a result of an actual or
threatened election contest, as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act,
or any other actual or threatened solicitation of proxies or
consents by or on behalf of any Person other than the Board
shall be deemed to have been a member of the Incumbent
Board;
(3) approval by the shareholders of the Company of a
reorganization, merger or consolidation unless, in any such
case, immediately after such reorganization, merger or
consolidation, (i) more than 60 percent of the then
outstanding shares of common stock of the corporation
resulting from such reorganization, merger or consolidation
and more than 60 percent of the combined voting power of the
then outstanding securities of such corporation entitled to
vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or
substantially all of the individuals or entities who were
the beneficial owners, respectively, of the Outstanding
Common Stock immediately prior to such reorganization,
merger or consolidation and in substantially the same
proportions relative to each other as their ownership,
immediately prior to such reorganization, merger or
consolidation, of the Outstanding Common Stock, (ii) no
Person other than the Company, any employee benefit plan (or
related trust) sponsored or maintained by the Company or the
corporation resulting from such reorganization, merger or
consolidation (or any corporation controlled by the Company)
and any Person which beneficially owned, immediately prior
to such reorganization, merger or consolidation, directly or
indirectly, 20 percent or more of the Outstanding Common
Stock) beneficially owns, directly or indirectly, 20 percent
or more of the then outstanding shares of common stock of
such corporation or 20 percent or more of the combined
voting power of the then outstanding securities of such
corporation entitled to vote generally in the election of
directors and (iii) at least a majority of the members of
the board of directors of the corporation resulting from
such reorganization, merger or consolidation were members of
the Incumbent Board at the time of the execution of the
initial agreement or action of the Board of Directors
providing for such reorganization, merger or consolidation;
or
(4) approval by the shareholders of the Company of (i)
a plan of complete liquidation or dissolution of the Company
or (ii) the sale or other disposition of all or
substantially all of the assets of the Company other than to
a corporation with respect to which, immediately after such
sale or other disposition, (A) more than 60 percent of the
then outstanding shares of common stock thereof and more
than 60 percent of the combined voting power of the then
outstanding securities thereof entitled to vote generally in
the election of directors is then beneficially owned,
directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the Outstanding Common Stock immediately
prior to such sale or other disposition and in substantially
the same proportions relative to each other as their
ownership, immediately prior to such sale or other
disposition, of the Outstanding Common Stock, (B) no Person
other than the Company, any employee benefit plan (or
related trust) sponsored or maintained by the Company or
such corporation (or any corporation controlled by the
Company) and any Person which beneficially owned,
immediately prior to such sale or other disposition,
directly or indirectly, 20 percent or more of the
Outstanding Common Stock beneficially owns, directly or
indirectly, 20 percent or more of the then outstanding
shares of common stock thereof or 20 percent or more of the
combined voting power of the then outstanding securities
thereof entitled to vote generally in the election of
director and (C) at least a majority of the members of the
board of directors thereof were members of the Incumbent
Board at the time of the execution of the initial agreement
or action of the Board providing for such sale or other
disposition.
(2) CERTAIN RESIGNATIONS TREATED AS TERMINATION BY THE
COMPANY. A resignation or other termination by the
Executive of his employment with the Company (described in
clause (ii) of the first sentence of this Section 3.04)
during the 180 day period commencing on the date on which a
change of control of the Company occurs shall be treated as
termination of such employment by the Company for purposes
of clause (i) of the first sentence of this Section 3.04 if
such resignation or other termination of such employment is
on account of:
(i) the assignment to the Executive of
any duties inconsistent in any respect with
the Executive's position (including status,
offices, titles and reporting requirements),
authority, duties or responsibilities as
contemplated by Section 1.01 or any other
action by the Company which results in a
diminution in such position, authority,
duties or responsibilities, excluding for
this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and
which is remedied by the Company promptly
after receipt of notice thereof given by the
Executive;
(ii) any failure by the Company to
comply with any of the provisions of Section
2.01, other than an isolated, insubstantial
and inadvertent failure not occurring in bad
faith and which is remedied by the Company
promptly after receipt of notice thereof
given by the Executive;
(iii) the Company's requiring the
Executive to be based at any office or
location other than that described in Section
1.01; or
(iv) any failure by the Company to
comply with and satisfy Section 4.02.
For purposes of this paragraph (D)(2), any good faith
determination that any of the above described events have
occurred made by the Executive shall be conclusive.
E. INDEMNIFICATION FOR ENFORCEMENT. If litigation is
brought to enforce or interpret any provision contained
herein, the Company shall indemnify the Executive for his
reasonable attorneys' fees and disbursements incurred in
such litigation, and shall pay prejudgment interest on any
money judgment obtained by the Executive calculated by using
the prime interest rate as reported from time to time in the
Wall Street Journal on the date or dates on which any
payment or payments to the Executive should have been made
hereunder.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. NOTICES. Any notice or request required or
permitted to be given hereunder shall be sufficient if in writing
and delivered personally or sent by registered mail, return
receipt requested, to the addresses hereinabove set forth or to
any other address designated by either party by notice similarly
given. Such notice shall be deemed to have been given upon the
personal delivery or such mailing thereof, as the case may be.
SECTION 4.02. ASSIGNMENT AND SUCCESSION. This Contract
shall be binding upon and inure to the benefit of the parties
hereto and their respective successors, assigns, heirs and
legatees, provided, however, that (i) the Executive may not
assign his duties and obligations hereunder to any other person
and (ii) the Company may not assign its duties and obligations
hereunder except to another corporation in connection with a
merger or consolidation of the Company with, or a sale of
substantially all of the Company's assets to, such other
corporation, and the Company shall not enter into or be a party
to any such merger or consolidation with or sale of substantially
all of its assets to any other corporation unless such
corporation expressly assumes in writing the duties and
obligations of the Company under this Agreement.
SECTION 4.03. HEADINGS. The Article, Section, paragraph
and subparagraph headings are for convenience of reference only
and shall not define or limit the provisions hereof.
SECTION 4.04. APPLICABLE LAW. This Agreement shall at all
times be governed by and construed, interpreted and enforced in
accordance with the laws of the State of Missouri.
SECTION 4.05. ENTIRE AGREEMENT; AMENDMENT. Except as
otherwise provided in Section 2.03 hereof, this Agreement shall
be deemed to supersede any previous agreement between the Company
and the Executive relating to the Employment of the Executive and
to contain the entire understanding and agreement of the parties
with respect to the subject matter hereof. The Company's
obligation to make the payments provided and to otherwise perform
its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action
which the Company may have against the Executive or others. This
Agreement may not be amended, modified or supplemented except in
a writing signed by each of the parties hereto.
SECTION 4.06. SEVERABILITY. In case one or more of the
provisions contained herein shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement or the remainder of such
provision or provisions, but such provision or provisions shall
be ineffective only to the extent of such invalidity, illegality
or unenforceability, without invalidating the remainder of such
provision or provisions or the remaining provisions of this
Agreement, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision or provisions had
never been contained herein, unless the deletion of such
provision or provisions would be unreasonable.
ARTICLE V
ADDITIONAL INDEMNIFICATION
SECTION 5.01. The Company and Executive hereby adopt the
Indemnification Agreement attached hereto and incorporated herein
as Exhibit I.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be signed in duplicate by its duly authorized officer and the
Executive has signed this Amended and Restated Employment
Contract in duplicate as of the 20th day of March, 1996.
ST. XXXXXX LIGHT & POWER COMPANY
By /s/ Xxxxx X. Xxxxxxxxxxx
Xxxxx X. Xxxxxxxxxxx
President
(SEAL)
ATTEST:
/s/ X.X. Xxxxx
Xxxxx X. Xxxxx
Assistant Secretary
FORM OF AGREEMENT Exhibit I
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement") is made as
of this 18th day of May, 1994 between ST. XXXXXX LIGHT & POWER
COMPANY, a Missouri corporation (the "Company"), and <>
(the "Executive").
RECITALS
A. The Executive is an officer of the Company and in such
capacity is performing valuable services for the Company.
B. Article TENTH of the Restated Articles of Incorporation
of the Company (the "Articles") and the Bylaws of the Company
("Bylaws") provides for the indemnification of the officers,
Executives, agents and employees of the Company pursuant to the
provisions of Section 351.355 of the General and Business
Corporation Laws of Missouri (the "Indemnification Statute").
C. The Indemnification Statute provides, among other
provisions, that a corporation shall have the power, subject to
certain exceptions, to give any further indemnity to its
Executives and officers, including indemnification agreements,
provided such indemnity is authorized, directed and provided for
in such corporation's articles of incorporation.
D. ARTICLE VI, Section 6. of the Bylaws authorizes the
Company to enter into agreements with any Executive, officer,
employee or agent providing such rights of indemnification as the
Company deems appropriate up to the maximum extent permitted by
law.
E. The Company presently maintains one or more policies of
Executives and Officers Liability Insurance ("D&O Insurance"),
insuring against certain liabilities which the Company's
Executives and officers may incur as they perform services for
the Company.
F. The Company deems it appropriate to enter into
agreements with its Executives to provide them with greater
indemnification against the liabilities they incur in the
performance of services for the Company.
TERMS
NOW, THEREFORE, in consideration of the Executive's
agreement to serve as a Executive of the Company, the parties
hereto agree as follows:
1. INDEMNITY OF EXECUTIVE. The Company confirms its
commitment of indemnification and agrees to indemnify the
Executive and hold him harmless to the full extent authorized or
permitted by the provisions of the Indemnification Statute, or by
any amendment thereof, or by any other statutory provisions
authorizing or permitting such indemnification which may be
adopted after the date hereof.
2. MAINTENANCE OF INSURANCE. The Company may, but shall
not be required to, continue or increase or otherwise revise the
terms to the benefit of the persons covered thereby all or any
part of the D&O Insurance it has in force and effect as of the
date hereof. If the Company continues to maintain the D&O
Insurance, such insurance shall be primary, to the extent of the
coverage provided thereby, and the Company's agreement to provide
the indemnification set forth herein shall be effective only to
the extent that the Executive is not reimbursed pursuant to the
coverage maintained under the D&O Insurance or any comparable
insurance. If the Company does not maintain such insurance, the
Company shall fully indemnify the Executive in accordance with
the provisions of Section 1 and Section 3 of this Agreement.
3. ADDITIONAL INDEMNITY. Subject only to the exclusion
set forth in Section 4 hereof, the Company hereby agrees to
indemnify the Executive and hold him harmless from and against
any and all expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by the Executive in connection with any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including any action
by or in the right of the Company) to which the Executive is, was
or at any time becomes a party (other than a party plaintiff
suing on his own behalf or derivatively on behalf of the
Company), or is threatened to be made a party (other than a party
plaintiff suing on his own behalf or derivatively on behalf of
the Company) by reason of the fact that the Executive is or was
at any time a Executive, officer, employee or agent of the
Company, or is or was serving or at any time serves at the
request of the Company as a Executive, officer, employee or agent
of another corporation, partnership, joint venture, trust or
other enterprise.
4. LIMITATION ON INDEMNITY. Notwithstanding any other
provision of this Agreement to the contrary, the Company shall
not indemnify any Executive from or on account of such person's
conduct which is finally adjudged to have been knowingly
fraudulent or deliberately dishonest or to have constituted
willful misconduct.
5. CONTINUATION OF INDEMNITY. All of the Company's
agreements and obligations contained herein shall continue (a)
during the period that the Executive is a Executive, officer,
employee or agent of the Company or is or was serving at the
request of the Company as a Executive, officer, employee or agent
of another corporation, partnership, joint venture, trust or
other enterprise, and (b) thereafter so long as the Executive
shall be subject to any possible claim or threatened, pending or
completed action, suit or proceeding, whether civil, criminal or
investigative, by reason of the fact that the Executive is or was
a Executive of the Company or serving in any other capacity
referred to herein.
6. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after the
Executive receives notice of the commencement of any action, suit
or proceeding, the Executive will, if a claim in respect thereof
is to be made against the Company under this Agreement, notify
the Company of the commencement thereof. The failure to notify
the Company will relieve the Company from any liability hereunder
to the extent the Company can show prejudice as a result of such
failure, and will not relieve the Company from any liability
which it may have to the Executive otherwise than under this
Agreement. With respect to any such action, suit or proceeding
as to which the Executive notifies the Company of the
commencement thereof:
(a) The Company will be entitled to participate
therein at its own expense; and,
(b) Except as otherwise provided below, to the extent
that it may wish, the Company (jointly with any other
indemnifying party similarly notified) will be entitled to assume
the defense thereof with counsel satisfactory to the Executive.
After the Company notifies the Executive of its election to
assume such defense, the Company will not be liable to the
Executive under this Agreement for any legal or other expenses
the Executive subsequently incurs in connection with the defense
thereof other than reasonable costs of investigation or as
otherwise provided below. The Executive shall have the right to
employ his counsel in such action, suit or proceeding, provided
that the fees and expenses of such counsel incurred after the
Company has provided the Executive with notice that it is
assuming the defense shall be at the Executive's expense, unless
(i) the Company has authorized the Executive's employment of
counsel, (ii) the Executive shall have reasonably concluded that
there may be a conflict of interest between the Company and the
Executive in the conduct of the defense of such action, or (iii)
the Company shall not in fact have employed counsel to assume the
defense of such action, in each of which cases the fees and
expenses of such counsel shall be at the Company's expense. The
Company shall not be entitled to assume the defense of any
action, suit or proceeding brought by or on behalf of the Company
or as to which the Executive shall have made the conclusion
provided for in (ii) above.
(c) The Company shall not be liable to indemnify the
Executive for any amounts paid in settlement of any action or
claim effected without the Company's written consent. The
Executive agrees that he will not enter into any settlement
discussions or agreements with respect to any such action or
claim unless the Company, whether or not it is then a party to or
threatened with respect to such action or claim, shall be
discharged from any liability to which it may be subject in
connection with such action or claim as a part of such
settlement. The Company shall not settle any action or claim in
any manner which would impose any penalty or limitation on the
Executive without the Executive's written consent. Neither the
Company nor the Executive will unreasonably withhold his or its
consent to any proposed settlement.
7. REPAYMENT OF EXPENSES. The Executive shall reimburse
the Company for all reasonable expenses the Company pays in
defending any civil or criminal action, suit or proceeding
against the Executive in the event and to the extent that it
shall be ultimately determined that the Executive is not entitled
to be indemnified by the Company for such expenses under the
provisions of the Indemnification Statute, the Articles and
Bylaws, this Agreement or otherwise. Prior to such
determination, the Company shall make such advances as shall be
reasonably necessary to pay such expenses of the Executive,
provided the Company receives an undertaking from the Executive
to repay such advances in the event it is ultimately determined
that the Executive is not entitled to be indemnified therefor.
8. ENFORCEMENT.
(a) The Company expressly confirms and agrees that it
has entered into this Agreement and assumed the obligations
imposed hereby in order to induce the Executive to continue as a
Executive of the Company, and acknowledges that the Executive is
relying upon this Agreement in continuing in such capacity.
(b) In the event that the Executive is required to
bring any action to enforce any rights or to collect any money
due under this Agreement and is successful in such action, the
Company shall reimburse the Executive for all of the Executive's
reasonable fees and expenses in bringing and pursuing such
action.
9. SEPARABILITY. Each provision of this Agreement is a
separate and distinct agreement, independent of the others. If
any provision shall be held to be invalid or unenforceable for
any reason, such invalidity or unenforceability shall not affect
the validity or enforceability of any of the other provisions.
10. GOVERNING LAW; BINDING EFFECT; AMENDMENT AND
TERMINATION.
(a) This Agreement shall be interpreted and enforced
in accordance with the law of the State of Missouri, without
reference to its rules governing conflicts of laws.
(b) This Agreement shall be binding upon the Executive
and the Company and shall inure to the benefit of the Executive,
his heirs, personal representatives and assigns and to the
benefit of the Company, its successors and assigns; provided,
however, the Company may not assign its duties and obligations
hereunder except to another corporation in connection with a
merger or consolidation of the Company with, or a sale of
substantially all of the Company's assets to, such other
corporation, and the Company shall not enter into or be a party
to any such merger or consolidation with or sale of substantially
all of its assets to any other corporation unless such
corporation expressly assumes in writing the duties and
obligations of the Company under this Agreement.
(c) In the event that the Company shall make any
payment to or on behalf of the Executive under the terms of this
Agreement, whether in satisfaction of any judgment, payment in
settlement, reimbursement of expenses, or otherwise, the Company
shall succeed to, and have by way of subrogation, all of the
rights theretofore possessed by the Executive against any other
person, firm or corporation for or on account of the lawsuit,
claim or matter in respect of which the payment was made,
including, without limitation, full subrogation to any claim or
right the Executive had or may have had against any insurance
company providing D&O Insurance to the Company, its officers and
Executives.
(d) No amendment, modification, termination or
cancellation of this Agreement shall be effective unless in
writing signed by both parties hereto.
