Ex. 10.9. Employment Agreement between FSCO and Xxxx X. Xxxxxx:
Employment Agreement
THIS AGREEMENT, entered into pursuant to authority of a resolution of the
Executive Committee on the 19th day of December, 1995, effective as of the
11th day of November, 1995, between First Security Corporation (the
"Employer"), and Xxxx X. Xxxxxx (the "Employee"), subject to ratification of
this contract by the Compensation Committee.
1. Employment. The Employer hereby employs the Employee, and the Employee
hereby accepts such employment, upon the terms and subject to the conditions
set forth in this Agreement.
2. Duties.
2.1 General Duties. As of the date hereof, the Employee's position with the
Employer is that of an Executive Vice President, Business Banking Services, of
First Security Corporation. Subject to the provisions of paragraphs 6 and 7
of this Agreement, the Employer may change the title, powers and duties of the
Employee in its sole discretion, and the Employee agrees to perform such
duties upon the terms and subject to the conditions set forth in this
Agreement.
2.2 Other Duties. Employee shall also serve, without additional compensation,
in such other offices and directorships of First Security Corporation (the
"Corporation") and its subsidiaries and related corporations ("Affiliates")
that he presently holds, or to which he in the future be elected or appointed.
Upon a termination of his employment with the Employer, the Employee shall
immediately submit a letter of resignation from all offices and directorships
with the Employer, the Corporation and its Affiliates.
3. Employment-at-will. The Employee and the Employer acknowledge and agree
that the Employee's employment with the Employer is and shall remain at all
times "employment-at-will." The Employee shall have the right to quit at any
time, and the Employer shall have the right to terminate the Employee's
employment at any time with or without cause, subject to the provisions of
paragraphs 6 and 7, below.
4. Compensation.
4.1 Base Compensation. As regular or base compensation for services rendered
to the Corporation and its Affiliates in whatever capacity rendered, the
Employer shall pay to the Employee a regular base salary (hereinafter
sometimes referred to as "regular compensation" or "regular base salary").
The parties acknowledge that, as of the date of this Agreement, the Employer
is paying to the Employee an annual regular base salary of $166,502, payable
semi-monthly. Such amount may be increased or decreased from time to time in
the sole and absolute discretion of the Employer, without need to amend or
modify this Agreement, subject only to the provisions of paragraphs 6 and 7,
below.
4.2 Additional Compensation. The Employer, in its sole and absolute
discretion, may from time to time offer equity-based incentives or other
incentives or benefits to the Employee, which shall be in addition to such
regular compensation. The Employer may modify or terminate such incentives in
its discretion, and the Employee acknowledges that he shall have no vested
rights in any such incentives, except as expressly provided under the terms
thereof, and subject to the provisions of paragraphs 6 and 7, below.
5. Term.
5.1 Initial Term. The term of this Agreement shall begin on November 11,
1995, and shall continue for a period of three (3) years (the "Term").
5.2 Automatic Renewal. The Term of this Agreement and each renewal thereof
shall automatically be renewed for successive periods of three (3) years each,
unless either the Employee or the Employer shall give notice of his or its
intention not to renew not less than six (6) months before the end of the
then-current Term.
5.3 Extension Upon Change of Control. If a Change of Control (as defined in
paragraph 7.1, below) shall occur during the Term or any renewal thereof, the
Term shall automatically be extended for a period of three years from the date
on which such Change of Control occurs.
6. Terminations Severance Payments.
6.1 Termination. The Employee's employment by the Employer may be terminated
by the Employer at any time, and the Employee may terminate his employment
with the Employer at any time, subject to the following provisions:
(a) Termination with Cause. If the Employer terminates the Employee's
employment with the Employer at any time "with cause" (as defined below), the
Employer shall only be obligated to pay to the Employee, on or before the
effective date of such termination, the Employee's regular compensation (as in
effect on the date of termination) through the effective date of such
termination, and the amounts, if any, required by the terms of any applicable
Plan in accordance with paragraph 11 hereof. For purposes of this paragraph,
the Employer may terminate the Employee "with cause" when the Employer
reasonably determines that:
(i) the Employee intentionally, recklessly or as the result of gross
negligence substantially violates his duties under this Agreement or as
otherwise assigned to him from time to time by the Employer; or
(ii) the Employee commits any act or acts which constitute dishonesty,
commission of a felony, or fraud;
(b) Termination Without Cause Prior to Change of Control. If the Employer
terminates the Employee's employment with the Employer at any time prior to
the occurrence of a Change of Control and other than "with cause' as defined
by subparagraph 6.1 (a) above, the Employer shall only be obligated to pay to
the Employee, on or before the effective date of such termination, the
Employee's regular compensation (as in effect on the date of termination)
through the effective date of such termination, and the amounts, if any,
required by the terms of any applicable Plan in accordance with paragraph 11
hereof.
(c) Termination Without Cause After Change of Control. If the Employer
terminates the Employee's employment with the Employer at any time after the
occurrence of a Change of Control and other than "with cause" as defined by
subparagraph 6.1 (a) above, the Employer shall be obligated to pay to the
Employee on or before the effective date of such termination (1) the
Employee's regular compensation (as in effect on the date of termination)
through the effective date of such termination, and (2) "severance pay" in a
single lump sum amount, determined as follows:
(i) the Employee's "regular monthly compensation" shall be determined by
dividing by twelve (12) the greater of (A) the Employee's annual regular
compensation as in effect as of the last day of the full calendar month
immediately prior to the month in which the Change of Control occurred, and
(B) the Employee's annual regular compensation as in effect as of the last day
of the full calendar month immediately prior to the month in which the
termination occurs;
(ii) the Employee's "average monthly bonus" shall be determined by adding
together the total amount of bonus and other cash incentives received by the
Employee during each of the three (3) full calendar years immediately
preceding the year in which the termination occurs, and dividing the sum by
thirty-six.
(a) In the case where the Employee has worked less than three (3) full
calendar years, the average monthly bonus shall be determined by adding
together the total amount of bonus and other cash incentives received by the
Employee during the employment period and dividing by the number of months of
employment.
(iii) the Employee's "gross severance pay" shall be determined by adding
together the Employee's regular monthly compensation and average monthly
bonus, and multiplying the sum by the lesser of (A) thirty-six, and (B) the
number of whole calendar months remaining until the Employee's 65th birthday;
and
(a) In the case where the Employee has worked less than three (3) full
calendar years, the "gross severance pay" shall be determined by adding
together the total amount of bonus and other cash incentives received by the
Employee during the employment period and dividing by the number of months of
employment.
(iv) the net amount of severance pay which the Employer shall pay to the
Employee shall be determined by subtracting from the Employee's gross
severance pay any amounts actually paid to the Employee under the First
Security Severance Pay Plan or any successor severance plan or program
sponsored by the Employer, the Corporation or its Affiliate; provided that
such amount may be further reduced as provided in paragraph 17, below, and
shall be subject to the withholding and offset as provided in paragraph 10.
(d) Termination by the Employee Before a Change of Control. The Employee may
terminate his employment with the Employer at any time before a change of
control, in which event the Employer shall only be obligated to pay to the
Employee, on or before the effective date of such termination, the Employee's
regular compensation (as in effect on the date of such termination) through
the effective date of termination, and the amounts, if any, required by the
terms of any applicable Plan in accordance with paragraph 11 hereof.
(e) Termination by the Employee After a Change of Control. The Employee may
terminate his employment with the Employer at any time after a change of
control, in which event the Employer shall be obligated to pay to the
Employee, on or before the effective date of such termination, the Employee's
regular compensation (as in effect on the date of such termination) through
the effective date of termination, and the amounts, if any, required by the
terms of any applicable Plan in accordance with paragraph 11 hereof. In
addition if the Employee elects to terminate his employment with the Employer
due to or as a result of any "Change in Duties or Compensation" (as defined
below) from the duties and compensation that existed immediately before such
Change of Control occurred, then the Employer shall be obligated to pay to the
Employee, on or before the thirtieth (30th) day following the date upon which
the Employee gives notice of his intent to terminate his employment, the
amount specified in paragraph 6.1 (c) above.
The foregoing provisions shall not affect Employee's entitlement under any
plan sponsored by the Corporation or the Employer as set forth in paragraph 11
hereof.
6.2 Limitations Upon Obligation to Pay Severance Pay. The Employer shall not
be required to pay severance pay under paragraph 6.1 (c) or 6.1 (e), above,
if:
(a) the termination of the Employee's employment with the Employer is due to
the Employee's retirement or other severance on or after age sixty-five (65);
(b) the Employee dies while employed by the Employer; or
(c) the Employee's employment is terminated or the Employee is transferred as
a result of or in connection with a corporate reorganization, the sale of a
subsidiary, a sale of assets, a transfer of a division, reincorporation, or
any similar event, if as part of such event the Employee is employed or is
offered employment by any successor entity in the same position with no Change
in Duties or Compensation as defined by paragraph 7.3, and either such
successor has assumed, or the Employer agrees to remain liable under, this
Agreement.
7. Definitions.
7.1 Change of Control. For purposes of this Agreement, "Change of Control"
shall mean the occurrence of any of the following events:
(a) either (i) receipt by the Corporation of a report on Schedule 13D, or an
amendment to such a report, filed with the Securities and Exchange Commission
pursuant to Section 13(d) of the Securities Exchange Act of 1934 (the "1934
Act") disclosing that any person (as such term is used in Section 13(d) of the
0000 Xxx) ("Person"), is the beneficial owner, directly or indirectly, of
twenty (20) percent or more of the outstanding stock of the Corporation or
(ii) actual knowledge by the Corporation of facts, on the basis of which any
Person is required to file such a report on Schedule 13D, or to make an
amendment to such a report, with the SEC (or would be required to file such a
report or amendment upon the lapse of the applicable period of time specified
in Section 13(d) of the 0000 Xxx) disclosing that such Person is the
beneficial owner, directly or indirectly, of twenty (20) percent or more of
the outstanding stock of the Company;
(b) the purchase by any Person, other than the Corporation or a wholly-owned
subsidiary of the Corporation, of shares pursuant to a tender or exchange
offer to acquire any stock of the Corporation (or securities convertible into
stock) for cash, securities or any other consideration; provided that, after
consummation of the offer, such Person is the beneficial owner (as defined in
Rule 13d-3 under the 1934 Act), directly or indirectly, of twenty (20) percent
or more of the outstanding stock of the Corporation (calculated as provided in
paragraph (d) of Rule 13d-3 under the 1934 Act in the case of rights to
acquire stock);
(c) approval by the stockholders of the Corporation of (i) any consolidation
or merger of the Corporation in which the Corporation is not the continuing or
surviving corporation or pursuant to which shares of stock of the Corporation
would be converted into cash, securities or other property, other than a
consolidation or merger of the Corporation in which holders of its common
stock immediately prior to the consolidation or merger have substantially the
same proportionate ownership of common stock of the surviving corporation
immediately after the consolidation or merger as immediately before, or (ii)
any consolidation or merger in which the Corporation is the continuing or
surviving corporation but in which the common stockholders of the Corporation
immediately prior to the consolidation or merger do not hold at least a
majority of the outstanding common stock of the continuing or surviving
corporation (except where such holders of common stock hold at least a
majority of the common stock of the corporation which owns all of the common
stock of the Corporation), or (iii) any sale, lease, exchange or other
transfer (in one transaction or series of related transactions) of all or
substantially all the assets of the Corporation; or
(d) a change in the majority of the members of the Corporation's Board of
Directors within a 24-month period unless the election or nomination for
election by the Corporation's stockholders of each new director was approved
by the vote of at least two-thirds of the directors then still in office who
were in office at the beginning of the 24-month period.
7.2 Determination by Board of Directors. A determination of the Board of
Directors, or the Executive Committee of the Board of Directors, of the
Corporation that a Change of Control within the above definition has occurred
and its decision to activate a similar provision upon such Change of Control
under any plan or other arrangement shall be final and binding on the
Corporation and all persons interested in the Agreement.
7.3 Change in Duties or Compensation. For purposes of this Agreement, "Change
in Duties or Compensation" shall mean any one or more of the following:
(a) a significant change in the nature or scope of the Employee's authorities
or duties from those authorities or duties of the Employee immediately prior
to the date upon which a Change of Control occurs;
(b) a reduction in the Employee's regular base salary from that provided to
him immediately prior to the date upon which a Change of Control occurs;
(c) if the Employee shall be subjected to a material decrease in compensation
or benefits (other than decreases imposed equally upon all employees);
(d) if the Employer requires the Employee to change location from the
particular location at which Employee was located immediately before such
Change of Control to a location outside a 30-mile radius of such prior
location, or requires the Employee to undertake new and excessive business
travel without the Employee's prior consent; or
(e) if, as a result of a Change in Control and a change in circumstances
thereafter significantly affecting the position of the Employee, the Employee
is unable to exercise the authorities, powers, function or duties attached to
his position immediately prior to the date on which a Change of Control
occurs.
8. Obligations of the Employee. The Employee shall conscientiously and to the
best of his ability perform all duties assigned to him by the Employer (in or
with the Corporation, the Employer or any Affiliate), and shall devote his
full time and attention to the performance of such duties to the exclusion of
any other commercial duties or pursuits whatsoever. The Employee shall not
become involved in any personal investment or business which may adversely
affect the business of the Employer, the Corporation or its Affiliates.
Compliance by the Employee with the Standards for Officers and Professionals
of First Security Corporation and Affiliates, as now in effect or as amended
from time to time, shall be a condition of the Employee's continued
employment. The Employee shall affirm compliance with such Standards at least
annually, and shall make disclosures as required by such Standards.
9. Confidential Information. The Employee acknowledges and recognizes that
the Employer and its Affiliates are in the financial, investment and banking
business, which business is highly competitive, and that the Employee, in his
position, will have access to and become familiar with certain proprietary and
confidential information of the Employer, the Corporation and its Affiliates,
including without limitation customer, investment and financial data of a
highly confidential nature. The Employee hereby agrees not to use, during the
course of his employment or thereafter, any such confidential or proprietary
information or divulge such information to any person, unless the Employer
gives its consent in writing in each instance, or unless the Employee is
compelled to disclose such information by a governmental process. The
Employee further hereby agrees not to publish orally or in writing any
derogatory information tending to defame or malign or in fact defaming or
maligning the Employer, the Corporation or its Affiliates, or present or
former employees or directors of the Employer, the Corporation or its
Affiliates. The Employee also hereby agrees and warrants that under no
circumstances shall the Employee remove from the Employer's premises any
books, records, documents, customer lists, financial data, or any other
documents. The provisions of this paragraph 9 shall survive any termination
of this Agreement or of the Employee's employment with the Employer.
10. Withholding from and Offset of Severance Payments. The obligation of the
Employer to make the payments referred to in paragraphs 4 and 6 of this
Agreement shall be subject to the following:
(a) Taxes. The Employer shall withhold all applicable federal, state and
local taxes as required by relevant law and regulation then in effect,
including without limitation FICA and other taxes.
(b) Debts and Liabilities of the Employee. The Employer may withhold from or
offset against such payments any liabilities or debts of the Employee to the
Employer, the Corporation and its Affiliates, and may suspend or defer such
payments during the pendency of resolution of any claims of the Employer, the
Corporation and its Affiliates against the Employee of whatsoever nature.
11. Application to Other Plans, Etc. Except as otherwise specifically
provided in this paragraph 11, this Agreement shall not determine, govern or
effect the Employee's entitlement to (a) any payments or benefits after
severance under the First Security Management Annual Cash Incentive Bonus Plan
("MACIBP"), (b) any accrued vacation or other compensation under any other
plan, policy or arrangement provided by the Employer, the Corporation or its
Affiliates, or (c) any other employee benefit plan or arrangement. Any
benefits to which Employee may be entitled Under the First Security
Supplemental Executive Retirement Plan ("SERP"), the First Security Incentive
Savings Plan, the First Security Retirement Plan, the First Security ERISA
Excess Plan, the First Security Corporation Comprehensive Management Incentive
Plan, the First Security Deferred Compensation Plan, the First Security
Severance Pay Plan, or any other plan now or hereafter established by the
Employer, the Corporation or its Affiliates for a group of its eligible
employees shall be paid, if required by such plan, in addition to the payments
hereunder, in accordance with and limited by the terms of the respective plans
then in effect; provided that:
(a) the severance payments under this Agreement shall not cause an increase
under any pension, welfare or other plan sponsored by the Employer, the
Corporation or any Affiliate; there shall be no accrual of retirement,
vacation, or any pension and/or welfare benefits of any nature as a result of
such severance payments; and the Employee shall not be deemed employed or on a
paid leave for any purpose or for any period of time as a result of such
severance payments.
(b) The calculation of the amount of severance pay to be paid under this
Agreement shall be reduced by any severance payments that may be due under the
First Security Severance Pay Plan or any successor severance plan or program
then sponsored by the Employer, the Corporation or an Affiliate, that are
actually paid to the Employee. The Employer's right to cancel or reduce any
plan or program now or hereafter in effect shall not be reduced or affected by
the Agreement.
12. Acknowledgments and Representations. The Employee hereby represents and
acknowledges that:
(a) no promises of any special treatment or provision have been made by any
person to the Employee;
(b) nothing in this Agreement shall be construed to limit or prevent the
Employer, the Corporation or any Affiliate from reducing, discontinuing,
terminating or amending any benefit plans or programs in any manner permitted
by law.
(c) the Employee's legal counsel has reviewed this Agreement, and the
Employee has had an opportunity to consult with an attorney or other person or
advisor of his choice in connection with the execution of this Agreement.
13. No Fiduciary Relationship. Nothing contained in this Agreement and no
action taken pursuant to the provisions of this Agreement shall create or be
construed to create a trust of any kind, or a fiduciary relationship between
(a) the Employer, the Corporation or any of its Affiliates, and (b) the
Employee or any other person.
14. No Assignment of Benefits. The rights of the Employee or any other person
to the payment of compensation or other payments under this Agreement may not
be assigned, transferred, pledged, or encumbered in any manner, either
voluntarily or involuntarily. Any attempt to so transfer or otherwise dispose
of such interest shall be void.
15. Merger or Consolidation. In the event of any consolidation or merger of
the Employer into or with another corporation or entity, or the sale of all or
substantially all of the assets of the Employer to another corporation, person
or entity, such person, corporation or entity shall assume the Employer's
obligations under this Agreement and become obligated to perform all of the
terms and conditions hereof. The Employee's employment shall not be deemed to
have terminated in any such event for purposes of this Agreement.
16. No Funding. The Employer shall be under no obligation whatsoever to
purchase or maintain any contract, policy, arrangement or other asset to
provide the benefits under this Agreement. Further, any contract, policy,
arrangement, or other asset which the Employer may utilize to assure itself of
the funds to provide the benefits required hereunder shall not serve in any
way as security to the Employee for the Employer's performance under this
Agreement. The rights accruing to the Employee hereunder shall be solely
those of an unsecured creditor of the Employer.
17. Limitation on Golden Parachute Payments.
17.1 Reduction of Benefits. Any provision of the Agreement to the contrary
notwithstanding, in the event that the independent auditors most recently
selected by the Corporation's or the Employer's Board of Directors (the
"Auditors') determine that any payment or transfer by the Employer to or for
the benefit of the Employee, whether paid or payable (or transferred or
transferable) pursuant to the terms of this Agreement or otherwise (a
'Payment"), would be nondeductible by the Employer for federal income tax
purposes because of the provisions covering "excess parachute payments" in
section 280G of the Internal Revenue Code of 1986, as amended, or any
successor code or law (the "Code"), then the aggregate present value of all
payments shall be reduced (but not below zero) to the Reduced Amount. For
purposes of this paragraph 17, the "Reduced Amount" shall be the amount,
expressed as a present value, which maximizes the aggregate present value of
the Payments without causing any Payment to be nondeductible by the Employer
because of section 280G of the Code.
17.2 Notice to the Employee. If the Auditors determine that any Payment would
be nondeductible by the Employer because of section 280G of the Code, then the
Employer shall promptly give-notice of such determination to the Employee,
together with a detailed calculation thereof and of the Reduced Amount. The
Employee may then elect, in his sole discretion, which and how much of the
Payments shall be eliminated or reduced (as long as after such election the
aggregate present value of the Payments equals the Reduced Amount), and shall
advise the Employer in writing of his election within 10 days of receipt of
such notice. If no such election is made by the Employee within such 10-day
period, then the Employer may elect which and how much of the Payments shall
be eliminated or reduced (as long as after such election the aggregate present
value of the Payments equals the Reduced Amount) and shall promptly notify the
Employee of such election. For purposes of this paragraph 17, present value
shall be determined in accordance with section 280G(d)(4) of the Code. All
determinations made by the Auditors under this paragraph 15 shall be binding
upon the Employer and the Employee and shall be made within sixty (60) days of
the date a payment becomes payable or transferable.
17.3 Payment. As promptly as practicable following such determination and the
elections hereunder, the Employer shall pay or transfer to or for the benefit
of the Employee such amounts as are then due to him under the Agreement and
shall promptly pay or transfer to or for the benefit of the Employee in the
future such amounts as become due to him under the Agreement.
17.4 Overpayments and Underpayments. As a result of uncertainty in the
application of section 280G of the Code at the time of an initial
determination by the Auditors hereunder, it is possible that Payments will
have been made by the Employer which should not have been made (an
"Overpayment"), or that additional Payments which will not have been made by
the Employer could have been made (an "Underpayment"), consistent in each case
with the calculation of the Reduced Amount hereunder. In the event that the
Auditors, based upon the assertion of a deficiency by the Internal Revenue
Service against the Employer or the Employee that the Auditors believe has a
high probability of success, determine that an Overpayment has been made, such
Overpayment shall be treated for all purposes as a loan to the Employee which
he shall repay to the Employer, together with interest at the applicable
federal rate provided in section 7872(b)(2) of the Code; provided, however,
that no amount shall be payable by the Employee to the Employer if and to the
extent that such payment would not reduce the amount which is subject to
taxation under section 4999 of the Code. In the event that the Auditors
determine that an Underpayment has occurred, such Underpayment shall promptly
be paid or transferred by the Employer to or for the benefit of the Employee,
together with interest at the applicable federal rate provided in section
7872(f)(2) of the Code.
17.5 Definition of "Employer". For purposes of this paragraph 17 only, the
term "Employer" shall include affiliated corporations to the extent determined
by the Auditors in accordance with section 280G(d)(5) of the Code.
18. Arbitration. Any controversy or claim arising out of, or relating to,
this Agreement or the breach thereof, shall be settled by arbitration in
accordance with the rules then applicable of the American Arbitration
Association, and judgment upon the award rendered may be entered in any court
having jurisdiction thereof.
19. Notices. All notices, requests, consents and demands shall be given to or
made upon the parties at their respective addresses set forth below, or at
such other address as a party may designate in writing delivered to the other
party. Unless otherwise agreed in this Agreement, all notices, requests,
consents and demands shall be given or made by personal delivery, by confirmed
air courier, by telegram, by facsimile transmission ("fax'), or by certified
first class mail, return receipt requested, postage prepaid, to the party
addressed to such address. If sent by confirmed air courier, such notice
shall be deemed to be given upon the earlier to occur of the date upon which
it is actually received by the addressee or the business day upon which
delivery is made at such address as confirmed by the air courier (or if the
date of such confirmed delivery is not a business day, the next succeeding
business day). If mailed, such notice shall be deemed to be given upon the
earlier to occur of the date upon which it is actually received by the
addressee or the third business day following the date upon which it is
deposited in a first-class postage-prepaid envelope in the United States mail
addressed to such address. If given by fax, such notice shall be deemed to be
given upon the date it is actually received by the addressee. If given by
telegram, such notice shall be deemed to be given upon the earlier to occur of
the date actually received by the addressee or the business day following the
date upon which it is delivered to the telegraph company.
If to the Employer:
First Security Corporation
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
If to the Employee:
Xxxx X. Xxxxxx
0000 Xxxx Xxxxxx Xxxx
Xxxxxx, Xxxx 00000
20. Assignment. The Employee may be transferred from employment with the
Employer to employment with another corporation that was affiliated with the
Employer prior to the date on which a Change of Control occurs, in which case
such other corporation or affiliate shall be substituted for the Employer
hereunder, and no termination of the Employee's employment shall be deemed to
have occurred. The Employee may not assign the benefit of this Agreement or
delegate his obligations under this Agreement. Subject to the foregoing
limitation upon assignment and delegation, this Agreement shall be binding
upon and inure to the benefit of the parties and their respective legal
representatives, successors, agents, heirs and assigns.
21. Determination by the Employer. The Employee shall not make any
determinations regarding this Agreement. If the Employee is the President of
the Employer at a time that a determination is to be made by the Employer
pursuant to this Agreement, such determination shall be made by the Board of
Directors of the Employer or an authorized delegates of such Board of
Directors.
22. Governing Law. This Agreement shall be construed in accordance with, and
governed by the substantive laws of, the State of Utah, without reference to
principles governing choice or conflicts of laws.
23. Enforcement of Severance Provision. In the event that after a Change of
Control a dispute between the parties on entitlement to severance payments
under this Agreement results in litigation, the Employer shall pay after the
conclusion of such litigation such Employee's costs arising out of or in
connection with such litigation, including without limitation court costs and
reasonable attorneys' fees.
24. Captions. The captions used herein are for ease of reference only and
shall not define or limit the provisions hereof.
25. Entire Agreement. This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter contained herein, and
there are no covenants, terms or conditions, express or implied, other than as
set forth or referred to herein. This Agreement supersedes all provisions of
any prior employment agreement between the Employee and the Employer, and all
other prior agreements between the parties hereto relating to all or part of
the subject matter herein. No party has made any representations, oral or
written, modifying or contradicting the terms of this Agreement. The parties
may not amend, modify or cancel this Agreement except as provided herein or by
a written agreement signed by all of the party to this Agreement. No promises
of any nature have been made in connection with the employment or continued
employment of the Employee other than as set forth in this Agreement, and
provided further that it is expressly agreed that the Employee shall be
entitled to only such benefits as are expressly provided by the various plans
of the Corporation and the Employer for eligible employees to the extent the
Employee qualifies for such benefits strictly in accordance with the terms and
provisions of such plans as now in effect or as modified from time to time.
IN WITNESS WHEREOF, the parties have executed this Agreement on the 7th day of
February, 1996.
THE EMPLOYER: THE EMPLOYEE:
FIRST SECURITY CORPORATION
By:
[SIGNED] [SIGNED]
____________________________________ ____________________________________
Xxxxxx X. Xxxxx Xxxx X. Xxxxxx
Member of the Board of the Employer,
and
President of First Security Corporation
