EXHIBIT 10(X)
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT by and between Xxxxx
Fargo & Company, a Delaware corporation (the "Company"), and Xxxxxxx X. Xxxxxx
(the "Executive") dated as of the 18th day of October, 2000 (the "Agreement").
WHEREAS, the Company determined that it was in the best
interests of the Company, First Security Corporation, a Delaware corporation
("First Security") and their respective shareholders to assure that the Company
and First Security would have the continued dedication of the Executive pending
the merger of the Company and First Security (the "Merger") pursuant to the
Agreement and Plan of Merger dated as of April 9, 2000 and to provide the
surviving corporation after the Merger with continuity of management. Therefore,
in order to accomplish these objectives, the Board of Directors of the Company
(the "Board") caused the Company to enter into an employment agreement between
the Executive and the Company, dated as of April 9, 2000 (the "Employment
Agreement"); and
WHEREAS, the Company and the Executive have mutually
determined their desire to amend and restate the Employment Agreement as set
forth herein.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. EFFECTIVE DATE. The "Effective Date" shall mean the
effective date of the Merger.
2. EMPLOYMENT PERIOD. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to remain in the employ of the
Company subject to the terms and conditions of this Agreement, for the period
commencing on the Effective Date and ending on the last day of the month in
which the Executive attains age 70 (the "Employment Period").
3. TERMS OF EMPLOYMENT. (a) POSITION AND DUTIES. (i) (A)
During the Employment Period, the Executive shall serve as Chairman of the
Company's Intermountain Region banking activities with such authority, duties
and responsibilities as are commensurate with such position and as may be
consistent with such position, and (B) the Executive's services shall be
performed in Salt Lake City, Utah. The Executive shall report directly to the
Chief Executive Officer of the Company. During the Employment Period, subject to
the Company's retirement policy, the Executive shall serve as a member of the
Company's Board of Directors.
(ii) During the Employment Period, and excluding any periods
of vacation and sick leave to which the Executive is entitled, the Executive
agrees to devote reasonable attention and time to the business and affairs of
the Company consistent with past practice and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder, to use the
Executive's reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a violation of
this Agreement for the Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill
speaking engagements or teach at educational institutions and (C) manage
personal investments, so long as such activities do not significantly interfere
with the performance of the Executive's responsibilities as an employee of the
Company in accordance with this Agreement. It is expressly understood and agreed
that to the extent that any such activities have been conducted by the Executive
prior to the Effective Date, the continued conduct of such activities (or the
conduct of activities similar in nature and scope thereto) subsequent to the
Effective Date shall be deemed not to interfere with the performance of the
Executive's responsibilities to the Company.
(b) COMPENSATION. (i) INITIAL PAYMENT. On the Effective
Date, the Company shall make a lump sum cash payment to the Executive equal to
$1 million.
(ii) BASE SALARY. During the period commencing on the
Effective Date and ending on the date of the Company's annual stockholders'
meeting in 2002 (the "Initial Period"), the Executive shall receive an annual
base salary ("Annual Base Salary") no less than the Executive's annual base
salary as in effect immediately prior to the date hereof. During the Initial
Period, the Annual Base Salary shall be reviewed no more than 12 months after
the last salary increase awarded to the Executive prior to the Effective Date
and thereafter at least annually. Any increase in Annual Base Salary shall not
serve to limit or reduce any other obligation to the Executive under this
Agreement. Annual Base Salary shall not be reduced after any such increase and
the term Annual Base Salary as utilized in this Agreement shall refer to Annual
Base Salary as so increased. After the Initial Period until the end of the
Employment Period, the Executive shall receive an Annual Base Salary of $800,000
per annum. As used in this Agreement, the term "affiliated companies" shall
include any company controlled by, controlling or under common control with the
Company.
(iii) ANNUAL BONUS. During the Initial Period, the
Executive shall receive an annual cash bonus ("Annual Bonus") no less than the
annual bonus earned by the Executive in respect of the 1998 calendar year (the
"Minimum Bonus"). The Executive shall be entitled to a pro rata Minimum Bonus in
respect of calendar year 2002.
(iv) INCENTIVE AWARDS. On the Effective Date, the Company
shall grant the Executive an option to acquire 85,000 shares of the Company's
common stock (the "Initial Option"). The Initial Option shall vest, in three
equal installments, on the first anniversary of the Effective Date, the second
anniversary of the Effective Date, with the last installment vesting on the last
day of the Initial Period, subject to accelerated vesting as provided herein and
upon a change of control of the Company (as defined in the Company's stock
incentive plan). The Initial Option shall have an exercise price equal to the
fair market value of the stock subject thereto on the date of grant and shall
have a term of, and remain exercisable (to the extent vested) for, ten years
from the date of grant, without regard to the Executive's earlier termination of
employment. The Executive shall be granted an additional option to acquire
100,000 shares of the Company's common stock in calendar year 2001, which shall
vest on the last day of the Initial Period (the "Additional Option"). The
Additional Option shall have an exercise price equal to the fair market value of
the stock subject on the date of grant and shall have a term of, and remain
exercisable (to the extent voted) for, ten years from the date of grant, without
regard to the Executive's earlier termination of employment.
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(v) RETIREMENT BENEFITS. The Executive shall be paid an
annual retirement benefit of $1,000,000 per year commencing upon the Executive's
70th birthday and, in each case, less any benefit accrued under the Company's
qualified and non-qualified defined benefit retirement plans (the "Retirement
Benefit"). Upon the Executive's death, his current spouse, should she survive
the Executive, shall be paid an annual benefit of 50% of the Retirement Benefit
(based on the higher amount) for her life (the "Spouse Benefit"). The Executive
shall receive a special bonus equal to $1.5 million on his 70th birthday (the
"Special Bonus").
(vi) OTHER EMPLOYEE BENEFIT PLANS. During the Employment
Period, except as otherwise expressly provided herein, the Executive shall be
entitled to participate in all employee benefit, welfare and other plans,
practices, policies and programs generally applicable to senior executives of
the Company, with the express exception of the Xxxxx Fargo & Company Salary
Continuation Pay Plan or the applicable First Security severance plan.
Notwithstanding the Executive's termination of employment for any reason, upon
the expiration of the Employment Period, the Executive shall be entitled to
receive post-retirement welfare benefits based on the greater of (A) the
benefits that the Executive would have been eligible to receive if he had
retired on the Effective Date and (B) the benefits that are provided to retired
executive officers of the Company at any time after the expiration of the
Employment Period subject to the terms of such plans as in effect from time to
time.
(vii) EXPENSES. During the Employment Period, the
Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Executive in accordance with the Company's policies.
(viii) OFFICE AND SUPPORT STAFF. During the Employment
Period, the Executive shall be entitled to an office or offices of a size and
with furnishings and other appointments as provided generally at any time
thereafter with respect to other peer executives of the Company and its
affiliated companies and shall be provided with secretarial and administrative
assistance on the same basis as provided to him immediately prior to the
Effective Date.
(ix) VACATION. During the Initial Period, the Executive
shall be entitled to paid vacation in accordance with the plans, policies,
programs and practices of the Company and its affiliated companies as in effect
with respect to the senior executives of the Company.
4. TERMINATION OF EMPLOYMENT. (a) DEATH OR DISABILITY. The
Executive's employment shall terminate automatically upon the Executive's death
during the Employment Period. If the Company determines in good faith that the
Disability of the Executive has occurred during the Employment Period (pursuant
to the definition of Disability set forth below), it may give to the Executive
written notice in accordance with Section 11(b) of this Agreement of its
intention to terminate the Executive's employment. In such event, the
Executive's employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Executive (the "Disability Effective
Date"), provided that, within the 30 days after such receipt, the Executive
shall not have returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" shall mean the absence of the Executive
from the Executive's duties with the Company on a full-time basis for 180
consecutive business days as a result of incapacity due to mental or physical
illness or injury which is determined to be total and
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permanent by a physician selected by the Company or its insurers and acceptable
to the Executive or the Executive's legal representative.
(b) CAUSE. The Company may terminate the Executive's
employment during the Employment Period for Cause. For purposes of this
Agreement, "Cause" shall mean:
(i) the continued failure of the Executive to perform
substantially the Executive's duties with the Company or one of its affiliates
(other than any such failure resulting from incapacity due to physical or mental
illness or injury), after a written demand for substantial performance is
delivered to the Executive by the Board which specifically identifies the manner
in which the Board believes that the Executive has not substantially performed
the Executive's duties, or
(ii) the willful engaging by the Executive in illegal
conduct or gross misconduct which is materially and demonstrably injurious to
the Company, or
(iii) conviction of a felony or a guilty or nolo
contendere plea by the Executive with respect thereto.
For purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or based upon the advice of counsel for the Company shall
be conclusively presumed to be done, or omitted to be done, by the Executive in
good faith and in the best interests of the Company. The cessation of employment
of the Executive shall not be deemed to be for Cause unless and until there
shall have been delivered to the Executive a copy of a resolution duly adopted
by the affirmative vote of not less than two-thirds of the entire membership of
the Board at a meeting of the Board called and held for such purpose (after
reasonable notice is provided to the Executive and the Executive is given an
opportunity, together with counsel, to be heard before the Board), finding that,
in the good faith opinion of the Board, the Executive is guilty of the conduct
described in subparagraph (i) or (ii) above, and specifying the particulars
thereof in detail.
(c) GOOD REASON. The Executive's employment may be
terminated by the Executive for Good Reason. For purposes of this Agreement,
"Good Reason" shall mean in the absence of a written consent of the Executive:
(i) the assignment of the Executive to any positions
other than the positions contemplated by the Merger Agreement and related
documents, or any other action by the Company which, in the Executive's
reasonable judgment, 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 3(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not
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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 more than 35 miles from that provided in Section
3(a)(i)(B) hereof;
(iv) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by this Agreement;
or
(v) any failure by the Company to comply with and satisfy
Section 10(c) of this Agreement.
For purposes of this Section 4(c), any good faith determination of "Good Reason"
made by the Executive shall be conclusive. Notwithstanding anything contained
herein to the contrary, during the period commencing on the Effective Date and
ending on the first anniversary thereof, the Executive shall not be permitted to
terminate his employment hereunder for Good Reason based on the Good Reason
event set forth in clause (i) of this Section 4(c), and any such asserted
termination shall be considered to be a termination by the Executive without
Good Reason for all purposes of this Agreement.
(d) NOTICE OF TERMINATION. Any termination by the Company
for Cause, or by the Executive for Good Reason, shall be communicated by Notice
of Termination to the other party hereto given in accordance with Section 11(b)
of this Agreement. For purposes of this Agreement, a "Notice of Termination"
means a written notice which (i) indicates the specific termination provision in
this Agreement relied upon, (ii) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated and
(iii) if the Date of Termination (as defined below) is other than the date of
receipt of such notice, specifies the termination date (which date shall be not
more than thirty days after the giving of such notice). The failure by the
Executive or the Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason or Cause shall not
waive any right of the Executive or the Company, respectively, hereunder or
preclude the Executive or the Company, respectively, from asserting such fact or
circumstance in enforcing the Executive's or the Company's rights hereunder.
(e) DATE OF TERMINATION. "Date of Termination" means (i) if
the Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein within 30 days of such notice, as the case may
be, (ii) if the Executive's employment is terminated by the Company other than
for Cause or Disability, the Date of Termination shall be the date on which the
Company notifies the Executive of such termination and (iii) if the Executive's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the Disability
Effective Date, as the case may be.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION. (a) GOOD
REASON; OTHER THAN FOR CAUSE, DEATH OR Disability. If, during the Initial
Period, the Company shall terminate
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the Executive's employment other than for Cause or Disability or the Executive
shall terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum
in cash within 30 days after the Date of Termination the aggregate of the
following amounts:
A. the sum of (1) the Executive's Annual Base Salary
through the Date of Termination to the extent not theretofore paid, and (2) the
product of (x) the Minimum Bonus and (y) a fraction, the numerator of which is
the number of days in the fiscal year in which the Date of Termination occurs
through the Date of Termination, and the denominator of which is 365, in each
case to the extent not theretofore paid (the sum of the amounts described in
clauses (1) and (2), shall be hereinafter referred to as the "Accrued
Obligations"); and
B. the amount equal to the product of (1) the number of
months and portions thereof from the Date of Termination until the end of the
Initial Period, divided by twelve and (2) the sum of (x) the Executive's Annual
Base Salary and (y) the Minimum Bonus; and
(ii) for the remainder of the Employment Period, the
Company shall continue to provide medical and dental benefits to the Executive
and his then current spouse on the same basis such benefits were provided to the
Executive immediately prior to the Date of Termination (collectively "Medical
Benefits");
(iii) the Special Bonus shall become immediately payable;
and
(iv) the Initial Option and the Additional Option shall
vest immediately; and
(v) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Executive (or his beneficiary or
estate, as the case may be) any other amounts or benefits required to be paid or
provided or which the Executive (or his beneficiary or estate, as the case may
be) is eligible to receive under any plan, program, policy or practice or
contract or agreement of the Company and its affiliated companies through the
Date of Termination (such other amounts and benefits shall be hereinafter
referred to as the "Other Benefits").
(b) DEATH. If the Executive's employment is terminated by
reason of the Executive's death during the Employment Period, this Agreement
shall terminate without further obligations to the Executive's legal
representatives under this Agreement, other than for payment of (w) Accrued
Obligations, (x) the Special Bonus, (y) the Spouse Benefit and (z) the timely
payment or provision of Other Benefits. In addition, the Initial Option and the
Additional Option shall vest immediately. Accrued Obligations shall be paid to
the Executive's estate or beneficiary, as applicable, in a lump sum in cash
within 30 days of the Date of Termination. With respect to the provision of
Other Benefits, the term Other Benefits as utilized in this Section 5(b) shall
include death benefits as in effect on the date of the Executive's death with
respect to other senior executives of the Company and their beneficiaries.
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(c) DISABILITY. If the Executive's employment is terminated
by reason of the Executive's Disability during the Employment Period, this
Agreement shall terminate without further obligations to the Executive, other
than for payment of (w) Accrued Obligations, (x) the Special Bonus, (y) the
Retirement Benefit (at a rate of $800,000 per annum until such time as the
Executive shall attain 70 years old) commencing at such time as the Executive's
benefits under the Company's tax-qualified defined benefit retirement plan
commences and (z) the timely payment or provision of Other Benefits. In
addition, the Initial Option and the Additional Option shall vest immediately.
Accrued Obligations shall be paid to the Executive in a lump sum in cash within
30 days of the Date of Termination. With respect to the provision of Other
Benefits, the term Other Benefits as utilized in this Section 5(c) shall
include, and the Executive shall be entitled after the Disability Effective Date
to receive, disability and other benefits as in effect on the Disability
Effective Date with respect to other senior executives of the Company and the
continued provision of Medical Benefits to the Executive and his current spouse
for the remainder of the Employment Period.
(d) CAUSE; OTHER THAN FOR GOOD REASON. If the Executive's
employment shall be terminated for Cause or the Executive terminates his
employment without Good Reason during the Initial Period, this Agreement shall
terminate without further obligations to the Executive other than the obligation
to pay or provide to the Executive (w) his Annual Base Salary through the Date
of Termination, (x) the Retirement Benefit (at the rate of $800,000 per annum
until the Executive's 70th birthday), (y) provision of Medical Benefits to the
Executive and his current spouse for the remainder of the Employment Period, and
(z) Other Benefits, in each case to the extent theretofore unpaid, and any
unvested portion of the Initial Option shall terminate unless otherwise provided
by the Board or the applicable committee thereof.
(e) AFTER INITIAL PERIOD. If the Executive's employment
shall terminate for any reason following the Initial Period, the Company shall
provide (x) the Medical Benefits to the Executive and his current spouse for the
remainder of the Employment Period, (y) the Retirement Benefit, which until the
Executive's 70th birthday, shall be at the rate of $800,000 per annum and (z)
Other Benefits, to the extent theretofore unpaid.
6. NON-EXCLUSIVITY OF RIGHTS. Except as specifically provided,
nothing in this Agreement shall prevent or limit the Executive's continuing or
future participation in any plan, program, policy or practice provided by the
Company or any of its affiliated companies and for which the Executive may
qualify, nor, subject to Section 11(f), shall anything herein limit or otherwise
affect such rights as the Executive may have under any contract or agreement
with the Company or any of its affiliated companies. Amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any plan,
policy, practice or program of or any contract or agreement with the Company or
any of its affiliated companies at or subsequent to the Date of Termination
shall be payable in accordance with such plan, policy, practice or program or
contract or agreement except as explicitly modified by this Agreement.
7. FULL SETTLEMENT. The Company's obligation to make the
payments provided for in this Agreement and otherwise to 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. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to
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the Executive under any of the provisions of this Agreement and, such amounts
shall not be reduced whether or not the Executive obtains other employment. The
Company agrees to pay as incurred, to the full extent permitted by law, all
legal fees and expenses which the Executive may reasonably incur as a result of
any contest (regardless of the outcome thereof) by the Company, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
Federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
of 1986, as amended (the "Code").
8. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment, award,
benefit or distribution by the Company (or any of its affiliated entities) to or
for the benefit of the Executive (whether pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Section 8) (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the Code or any corresponding provisions of state or
local tax laws, or any interest or penalties are incurred by the Executive 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"), then
the Executive shall be entitled to receive 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, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and 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 the Payments. The payment of a Gross-Up Payment under this Section
8(a) shall not be conditioned upon the Executive's termination of employment.
Notwithstanding the foregoing provisions of this Section 8(a), if it shall be
determined that the Executive is entitled to a Gross-Up Payment, but that the
portion of the Payments that would be treated as "parachute payments" under
Section 280G of the Code does not exceed 110% of the greatest amount (the "Safe
Harbor Amount") that could be paid to the Executive such that the receipt of
Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall
be made to the Executive and the amounts payable under this Agreement shall be
reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor
Amount. The reduction of the amounts payable hereunder, if applicable, shall be
made by first reducing the payments under Section 5(a)(i)(B), unless an
alternative method of reduction is elected by the Executive. For purposes of
reducing the Payments to the Safe Harbor Amount, only amounts payable under this
Agreement (and no other Payments) shall be reduced. If the reduction of the
amounts payable under this Agreement would not result in a reduction of the
Payments to the Safe Harbor Amount, no amounts payable under this Agreement
shall be reduced pursuant to this Section 8(a).
(b) Subject to the provisions of Section 8(c), all
determinations required to be made under this Section 8, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by KPMG Peat Marwick LLP or such other certified public accounting firm
reasonably acceptable to the Company as may be designated by the Executive (the
"Accounting Firm") which shall provide detailed supporting calculations both to
the Company and
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the Executive within 15 business days of the receipt of notice from the
Executive that there has been a Payment, or such earlier time as is requested by
the Company. All fees and expenses of the Accounting Firm shall be borne solely
by the Company. Any Gross-Up Payment, as determined pursuant to this Section 8,
shall be paid by the Company to the Executive within five days of (i) the later
of the due date for the payment of any Excise Tax, and (ii) the receipt of the
Accounting Firm's determination. Any determination by the Accounting Firm shall
be binding upon the Company and the Executive. As a result of the uncertainty in
the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company should have been made
("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 8(c) and the Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive.
(c) 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 the Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than ten business days after the Executive
is informed in writing 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:
(i) give the Company any information reasonably requested
by the Company relating to such claim,
(ii) 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,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) 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 Section 8(c), the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings
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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 shall determine; provided, however, that if the Company
directs the Executive to pay such claim and xxx for a refund, the Company 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, the Company's control
of the contest 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.
(d) If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 8(c), the Executive becomes entitled
to receive any refund with respect to such claim, the Executive shall (subject
to the Company's complying with the requirements of Section 8(c)) promptly pay
to the Company 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 pursuant to Section 8(c), 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 of 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 offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid.
9. CONFIDENTIAL INFORMATION. (a) The Executive shall hold in a
fiduciary capacity for the benefit of the Company all secret or confidential
information, knowledge or data relating to the Company or any of its affiliated
companies, and their respective businesses, which shall have been obtained by
the Executive during the Executive's employment by the Company or any of its
affiliated companies and which shall not be or become public knowledge (other
than by acts by the Executive or representatives of the Executive in violation
of this Agreement). After termination of the Executive's employment with the
Company, the Executive shall not, without the prior written consent of the
Company or as may otherwise be required by law or legal process, communicate or
divulge any such information, knowledge or data to anyone other than the Company
and those designated by it.
(b) In the event of a breach or threatened breach of this
Section 9, the Executive agrees that the Company shall be entitled to injunctive
relief in a court of appropriate jurisdiction to remedy any such breach or
threatened breach, the Executive acknowledges that damages would be inadequate
and insufficient. In no event shall an asserted violation of the provisions of
this Section 9 constitute a basis for deferring or withholding any amounts
otherwise payable to the Executive under this Agreement.
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10. SUCCESSORS. (a) This Agreement is personal to the
Executive and without the prior written consent of the Company shall not be
assignable by the Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by
the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
11. MISCELLANEOUS. (a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without
reference to principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
IF TO THE EXECUTIVE: The most recent address on
file for the Executive at First Security
IF TO THE COMPANY:
Attention: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The Company may withhold from any amounts payable under
this Agreement such Federal, state, local or foreign taxes as shall be required
to be withheld pursuant to any applicable law or regulation.
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(e) The Executive's or the Company's failure to insist upon
strict compliance with any provision of this Agreement or the failure to assert
any right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section 4(c)(i)-(v) of this Agreement, shall not be deemed to be a
waiver of such provision or right or any other provision or right of this
Agreement.
(f) From and after the Effective Date this Agreement shall
supersede any other employment, severance or change of control agreement between
the parties with respect to the subject matter hereof, including the Change of
Control Employment Agreement between the Company and the Executive dated
February 2, 1998, except as expressly provided herein.
(g) This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
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IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization from its Board of Directors,
the Company has caused these presents to be executed in its name on its behalf,
all as of the day and year first above written.
/s/ XXXXXXX X. XXXXXX
--------------------------------------
XXXXXXX X. XXXXXX
XXXXX FARGO & COMPANY
/s/ XXXXXXX X. XXXXXXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: President and CEO
