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MAGNA GROUP, INC.
AGREEMENT
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This agreement ("Agreement") has been entered into this 17th day of
October, 1997, by and between Magna Group, Inc., a Delaware corporation
("Company"), and Xxxxxxxx X. Xxxxxxxx, an individual ("Executive").
RECITALS
The Board of Directors of the Company (the "Board"), has determined that
it is in the best interests of the Company and its stockholders to reinforce
and encourage the continued attention and dedication of the Executive to the
Company as a member of the Company's management (including, if applicable,
management of a wholly owned subsidiary) and to assure that the Company will
have the continued dedication of the Executive, notwithstanding the
possibility, threat or occurrence of a Change in Control (as defined below)
of the Company. The Board desires to provide for the continued employment of
the Executive on the terms hereof, and the Executive is willing to commit to
continue to serve the Company. Additionally, the Board believes it is
imperative to diminish the inevitable distraction of the Executive by virtue
of the personal uncertainties and risks created by a pending or threatened
Change in Control, to encourage the Executive's full attention and dedication
to the Company currently and in the event of any threatened or pending Change
in Control, and to provide the Executive with compensation and benefits
arrangements upon the breach of this Agreement by the Employer or upon a
termination of employment after a Change in Control which ensure that the
compensation and benefits expectations of the Executive will be satisfied and
which are competitive with those of other corporations. Therefore, in order
to accomplish these objectives, the Board has caused the Company to enter
into this Agreement.
IT IS AGREED AS FOLLOWS:
SECTION 1: DEFINITIONS AND CONSTRUCTION.
1.1 DEFINITIONS. For purposes of this Agreement, the
following words and phrases, whether or not capitalized,
shall have the meanings specified below, unless the context
plainly requires a different meaning.
1.1(a) "ANNUAL BASE SALARY" means the dollar amount
approved by the Company Director Compensation
Committee or the Company Chief Executive Officer.
1.1(b) "BOARD" means the Board of Directors of the
Company.
1.1(c) "CHANGE IN CONTROL" means a change in
control of the Company of a nature that would
be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A promulgated
under the Exchange Act; provided that, for
purposes of this Agreement, a Change in Control
shall be deemed to have occurred if (i) any Person
(other than the Company) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act),
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directly or indirectly, of securities of the
Company which represent 20% or more of the
combined voting power of the Company's then
outstanding securities; (ii) during any period
of two (2) consecutive years, individuals who at
the beginning of such period constitute the Board
cease for any reason to constitute at least a
majority thereof, unless the election, or the
nomination for election, by the Company's
stockholders, of each new director is approved
by a vote of at least two-thirds (2/3) of the
directors then still in office who were directors
at the beginning of the period but excluding any
individual whose initial assumption of office
occurs as a result of either an actual or
threatened election contest (as such term is used
in Rule 14a-11 of Regulation 14A promulgated under
the Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on
behalf of a person other than the Board;
(iii) there is consummated any consolidation or
merger of the Company in which the Company is not
the continuing or surviving corporation or
pursuant to which shares of the Company's
Common Stock is converted into cash, securities,
or other property, other than a merger of the
Company in which the holders of the Company's
Common Stock immediately prior to the merger have
the same proportionate ownership of common
stock of the surviving corporation immediately
after the merger; (iv) there is consummated any
consolidation or merger of the Company in which
the Company is the continuing or surviving
corporation in which the holders of the
Company's Common Stock immediately prior to the
merger do not own fifty percent (50%) or more of
the stock of the surviving corporation immediately
after the merger; (v) there is consummated any
sale, lease, exchange, or other transfer (in
one transaction or a series of related
transactions) of all, or substantially all, of the
assets of the Company, or (vi) the stockholders
of the Company approve any plan or proposal
for the liquidation or dissolution of the Company.
1.1(d) "CHANGE IN CONTROL DATE" shall mean the
date of the Change in Control. If a Change in
Control occurs and if the Executive's employment
with the Company is terminated prior to the date
on which the Change in Control occurs, and if it
is reasonably demonstrated by the Executive
that such termination of employment (i) was at the
request of a third party who has taken steps
reasonably calculated to effect a Change in
Control or (ii) otherwise arose in connection with
or anticipation of a Change in Control, then
for all purposes of this Agreement, the "Change in
Control Date" shall mean the date immediately
prior to the date of such termination of
employment, and a Change in Control shall
be deemed to have occurred on the Change in
Control Date.
1.1(e) "CODE" shall mean the Internal Revenue Code of
1986, as amended.
1.1(f) "COMPANY" means Magna Group, Inc., a Delaware
corporation.
1.1(g) "EFFECTIVE DATE" shall mean October 17,
1997.
1.1(h) "EXCHANGE ACT" means the Securities Exchange
Act of 1934, as amended.
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1.1(i) "INCENTIVE BONUS" shall mean the incentive
bonus provided through any incentive compensation
plan, which is generally available to other peer
executives of the Company, awarded to the
Executive for the year preceding termination. To
the extent such incentive bonus is paid in shares
of restricted stock, Incentive Bonus shall include
the value of such shares on their award date
without any discount; provided, however, such
restricted shares shall include only those awarded
in lieu of compensation payable as determined by
the Compensation Committee of the Board.
1.1(j) "PERSON" means any "person" within the meaning of
Sections 13(d) and 14(d) of the Exchange Act.
1.1(k) "TERM" means the period that begins on the
Effective Date and ends on the earlier of:
(i) the Date of Termination as defined in Section
3.7, or (ii) the close of business on December 31
of any calendar year during which notice is given,
by December 1 of such year, by either party
(as provided in Section 7) of such party's intent
not to renew this Agreement.
1.2 GENDER AND NUMBER. When appropriate, pronouns in this
Agreement used in the masculine gender include the feminine gender, words in
the singular include the plural, and words in the plural include the
singular.
1.3 HEADINGS. All headings in this Agreement are included
solely for ease of reference and do not bear on the interpretation of the
text. Accordingly, as used in this Agreement, the terms "Article" and
"Section" mean the text that accompanies the specified Article or Section of
the Agreement.
1.4 APPLICABLE LAW. This Agreement shall be governed by
and construed in accordance with the laws of the state of Missouri, without
reference to its conflict of law principles.
SECTION 2: TERMS AND CONDITIONS OF EMPLOYMENT.
2.1 EMPLOYMENT. If the Executive is in the employ of the
Company (or in the employ of a wholly owned subsidiary) on a Change in
Control Date, then the Executive shall thereafter remain in the employ of the
Company (or in the employ of a wholly owned subsidiary) in accordance with
the terms and provisions of this Agreement.
2.2 POSITIONS AND DUTIES.
2.2(a) Following a Change in Control Date, the
Executive shall continue to serve in the Executive's then
current capacity, subject to the reasonable directions of
the Board.
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The Executive shall thereafter devote the Executive's full
working time and attention to such business and affairs of the
Company and/or any subsidiary of the Company as directed by the
Board, as may be compatible with the Executive's titles and
positions. In addition, the Executive's position (including
status, offices, titles and reporting requirements), authority,
duties and responsibilities shall be at least commensurate in all
material respects with those assigned to, or held and
exercised by, the Executive immediately preceding a Change
in Control Date.
2.2(b) Following a Change in Control Date and
thereafter throughout the Term of this Agreement (but
excluding any periods of vacation and sick leave to which
the Executive is entitled), the Executive shall devote
reasonable attention and time during normal business hours
to the business and affairs of the Company and shall use the
Executive's reasonable best efforts to perform faithfully
and efficiently such responsibilities as are assigned to the
Executive under or in accordance with this Agreement;
provided that, it shall not be a violation of this paragraph
for the Executive to (i) serve on corporate, civic or
charitable boards or committees, (ii) deliver lectures or
fulfill speaking engagements, or (iii) 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 or violate the Company's conflict of
interest policy as in effect immediately prior to the
Effective Date.
2.3 SITUS OF EMPLOYMENT. Following a Change in Control
Date and thereafter throughout the Term of this Agreement, the Executive's
services shall be performed at the location where the Executive was employed
immediately preceding the Change in Control Date.
2.4 COMPENSATION. For any calendar year including and
following a Change in Control Date, the Executive shall receive an Annual
Base Salary equal to the Annual Base Salary being received immediately prior
to a Change in Control Date, which shall be paid in equal or substantially
equal monthly installments. The Annual Base Salary payable to the Executive
shall be reviewed thereafter at least annually but need not be adjusted
upward as a result of such review and shall not be reduced after any increase
thereof.
SECTION 3: TERMINATION OF AGREEMENT.
3.1 DEATH. This Agreement shall terminate automatically
upon the Executive's death during the Term of this Agreement.
3.2 DISABILITY. If, following a Change in Control Date,
the Company determines in good faith that the Disability of the Executive has
occurred during the Term of this Agreement (pursuant to the definition of
Disability set forth below), it may give to the Executive written notice in
accordance with Section 8.1 of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective on the thirtieth (30th) day after receipt of such notice
by the Executive (the "Disability Effective Date"), provided that, within the
thirty (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 that the Executive has been unable to
perform the services required of the Executive hereunder on a full-time basis
for a period of one hundred eighty (180) consecutive business days by reason
of a physical and/or mental condition. "Disability" shall be
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deemed to exist when certified by a physician selected by the Company or its
insurers and acceptable to the Executive or the Executive's legal representative
(such agreement as to acceptability not to be withheld unreasonably). The
Executive will submit to such medical or psychiatric examinations and tests
as such physician deems necessary to make any such Disability determination.
3.3 PRIOR TO CHANGE IN CONTROL. Executive is employed
at will. Any notice of termination by Executive or Company shall be given in
accordance with Section 3.6 of the Agreement.
3.4 FOLLOWING A CHANGE IN CONTROL - TERMINATION BY
COMPANY FOR CAUSE. Following a Change in Control Date, the Company may
terminate the Executive's employment during the Term of this Agreement for
"Cause," which shall mean termination based upon: (i) the Executive's willful
and continued failure to substantially perform the Executive's duties with
the Company (other than as a result of incapacity due to physical or mental
condition), after a demand for substantial performance is delivered to the
Executive by the Chief Executive Officer of the Company or the Chairman of
the Compensation Committee of the Board, which specifically identifies the
manner in which the Executive has not substantially performed the Executive's
duties, (ii) the Executive's willful commission of misconduct which is
materially injurious to the Company, monetarily or otherwise, or (iii) the
Executive's material breach of any provision of this Agreement. For purposes
of this paragraph, no act, or failure to act on the Executive's part shall be
considered "willful" unless done, or omitted to be done, without good faith
and without reasonable belief that the act or omission was in the best
interest of the Company. Notwithstanding the foregoing, the Executive shall
not be deemed to have been terminated for Cause unless and until (i) the
Executive receives a Notice of Termination (as defined in Section 3.6) from
the Chief Executive Officer of the Company or the Chairman of the
Compensation Committee of the Board, (ii) the Executive is given the
opportunity, with counsel to be heard before the Board, and (iii) the Board
finds, in its good faith opinion, the Executive was guilty of the conduct set
forth in the Notice of Termination.
3.5 FOLLOWING A CHANGE IN CONTROL - TERMINATION BY
EXECUTIVE FOR GOOD REASON. Following a Change in Control Date, the
Executive may terminate the Executive's employment with the Company for "Good
Reason," which shall mean termination based upon:
(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 2.2(a) or any other action by the
Company which results in a material diminution in such
position, authority, duties or responsibilities, excluding
for this purpose any action not taken in bad faith and which
is remedied by the Company promptly after receipt of notice
thereof given by the Executive;
(ii) the failure by the Company to continue in effect any
benefit or compensation plan, stock ownership plan, life
insurance plan, health and accident plan or disability plan
to which the Executive is entitled, the taking of any action
by the Company which would adversely affect the Executive's
participation in, or materially reduce the Executive's
benefits such plans, or deprive the Executive of any
material fringe benefit enjoyed by the Executive or the
failure by the Company to provide the Executive with the
number of paid vacation days to which the Executive is
entitled.
(iii) the Company's requiring the Executive to be based
at any office or location other than that described in
Section 2.3;
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(iv) a material breach by the Company of any provision
of this Agreement;
(v) any failure by the Company to renew this Agreement so
that the Term ends prior to the second anniversary of the
Change in Control Date or any purported termination by the
Company of the Executive's employment otherwise than as
expressly permitted by this Agreement;
(vi) within a period ending at the close of business on
the date two (2) years after the Change in Control Date, any
failure by the Company to comply with and satisfy Section
6.2 on or after the Change in Control Date; or
(vii) within a period ending at the close of business on
the date one (1) year after the Change in Control Date, the
Executive, in the Executive's sole and absolute discretion,
determines and notifies the Company in writing, that the
Executive does not wish to continue employment with the
Company.
For purposes of this Section any good faith determination of "Good Reason"
made by the Executive shall be conclusive.
3.6 NOTICE OF TERMINATION. Any termination by the
Company, or by the Executive, shall be communicated by Notice of Termination
to the other party, given in accordance with Section 8.1. 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
fifteen (15) 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 hereunder or preclude the
Executive or the Company from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
3.7 DATE OF TERMINATION. "Date of Termination" means (i)
if the Executive's employment is terminated by the Company with or without
Cause, or by the Executive for Good Reason or otherwise, the Date of
Termination shall be the date of receipt of the Notice of Termination or any
later date specified therein, as the case may be, or (ii) 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.
SECTION 4: CERTAIN BENEFITS UPON TERMINATION OF EMPLOYMENT.
4.1 TERMINATION WITHOUT CAUSE PRIOR TO A CHANGE IN
CONTROL. If, prior to a Change in Control, during the Term of this
Agreement the Company shall terminate the Executive's employment without
Cause, then on the tenth (10th) business day following the Date of
Termination, the Company shall pay to the Executive the sum of (1) the
Executive's Annual Base Salary prorated through the Date of Termination to
the extent not previously paid, and (2) any accrued vacation pay to the
extent not previously paid.
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4.2 TERMINATION AFTER A CHANGE IN CONTROL. If a Change
in Control occurs during the Term of this Agreement and within two (2) years
after such Change in Control: (i) the Company shall terminate the Executive's
employment without Cause, or (ii) the Executive shall terminate employment
with the Company for Good Reason, then the Executive shall be entitled to the
benefits provided below:
4.2(a) "Accrued Obligations": On the tenth (10th)
business day following the Date of Termination, the Company
shall pay to the Executive the sum of (1) the Executive's
Annual Base Salary prorated through the Date of Termination
to the extent not previously paid, and (2) any accrued
vacation pay to the extent not previously paid.
4.2(b) "Severance Amount": On the tenth (10th)
business day following the Date of Termination, the Company
shall pay to the Executive as severance pay a lump sum cash
payment in an amount equal to 2 (two) times the sum of the
Executive's Annual Base Salary in effect on the Date of
Termination and the Executive's Incentive Bonus.
4.2(c) "Stock Options": To the extent not otherwise
provided for under the terms of any of the Company's stock
option agreements, all such stock options shall become fully
exercisable as of the Date of Termination and, except for
"incentive stock options" within the meaning of Code Section
422 granted prior to the date hereof, shall remain fully
exercisable in accordance with their terms.
4.2(d) "Other Benefits": To the extent not previously
paid or provided, the Company shall timely pay or provide to
the Executive and/or the Executive's family any other
amounts or benefits required to be paid or provided for
which the Executive and/or the Executive's family is
eligible to receive pursuant to this Agreement and under any
plan, program, policy or practice or contract or agreement
of the Company as those provided generally to other peer
executives and their families during the ninety (90) day
period immediately preceding the Effective Date or, if more
favorable to the Executive, as those provided generally
after the Effective Date to other peer executives of the
Company and their families.
4.2(e) "Excess Parachute Payment": Anything
in this Agreement to the contrary notwithstanding, in the
event that an independent accountant shall determine that any
payment or distribution by the Company to or for the benefit
of Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or
otherwise) (a "Payment") would be nondeductible by the Company
for Federal income tax purposes because of Code Section 280G
or would constitute an "excess parachute payment" (as defined
in Code Section 280G), then the aggregate present value of
amounts payable or distributable to or for the benefit of
Executive pursuant to this Agreement (such payments or
distributions pursuant to this Agreement are hereinafter
referred to as "Agreement Payments") shall be reduced (but not
below zero) to the Reduced Amount. For purposes of this
paragraph, the "Reduced Amount" shall be an amount expressed
in present value which maximizes the aggregate present value
of Agreement Payments without causing any Payment to be
nondeductible by the Company because of Code Section 280G or
without causing any portion of the Payment to be subject to
the excise tax imposed by Code Section 4999.
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If the independent accountant determines that any Payment
would be nondeductible by the Company because of Code Section
280G or that any portion of the Payment will be subject to the
excise tax imposed by Code Section 4999, the Company shall
promptly give Executive notice to that effect and a copy of
the detailed calculation thereof and of the Reduced Amount.
The Executive may then elect, in the Executive's sole
discretion, which and how much of the Agreement Payments shall
be eliminated or reduced (as long as after such election the
aggregate present value of the Agreement Payments equals the
Reduced Amount), and shall advise the Company in writing of
the Executive's election within ten (10) days of the
Executive's receipt of such notice. If no such election is
made by Executive within such ten-day period, the Company may
elect which and how much of the Agreement Payments shall be
eliminated or reduced (as long as after such election the
aggregate present value of the Agreement Payments equals the
Reduced Amount) and shall notify the Executive promptly of
such election. For purposes of this paragraph, present value
shall be determined in accordance with Code Section
280G(d)(4). All determinations made by the independent
accountant under this paragraph shall be binding upon the
Company and the Executive and shall be made within sixty (60)
days of a termination of employment of the Executive. As
promptly as practicable following such determination and the
elections hereunder, the Company shall pay to or distribute to
or for the benefit of the Executive such amounts as are then
due to the Executive under this Agreement and shall promptly
pay to or distribute for the benefit of the Executive in the
future such amounts as become due to the Executive under this
Agreement.
As a result of the uncertainty in the application of Code
Sections 280G and 4999 at the time of the initial
determination by the independent accountant hereunder, it is
possible that Agreements Payments will be made by the Company
which should not have been made ("Overpayment") or that
additional Agreement Payments which have not been made by the
Company should have been made ("Underpayment"), in each case,
consistent with the calculation of the Reduced Amount
hereunder. In the event that the independent accountant,
based upon the assertion of a deficiency by the Internal
Revenue Service against the Company or the Executive which the
independent accountant believes has a high probability of
success, determines that an Overpayment has been made, any
such Overpayment shall be treated for all purposes as a loan
to the Executive which the Executive shall repay to the
Company together with interest at the applicable Federal rate
provided for in Code Section 7872(f)(2); provided, however,
that no amount shall be payable by the Executive to the
Company if and to the extent such payment would not reduce the
amount which is subject to taxation under Code Section 4999 or
if the period of limitations for assessment of tax under Code
Section 4999 against the Executive shall have expired. If the
Executive is required to repay an amount under this Section,
the Executive shall repay such amount over a period of time
not to exceed one (1) year for each twenty-five thousand
dollars ($25,000) which the Executive must repay to the
Company. In the event that the independent accountant, based
upon controlling precedent, determines that an Underpayment
has occurred, any such Underpayment shall be promptly paid by
the Company to or for the benefit of the Executive together
with interest at the applicable Federal rate provided for in
Code Section 7872(f)(2)(A).
4.3 DEATH. If the Executive's employment is terminated by
reason of the Executive's death during the Term of this Agreement (either
prior or subsequent to a Change in Control), this Agreement shall terminate
without further obligations to the Executive's legal representatives under
this Agreement,
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other than for payment of Accrued Obligations (as defined in Section 4.1) (which
shall be paid to the Executive's estate or beneficiary, as applicable, in a lump
sum in cash within ten (10) days of the Date of Termination).
4.4 DISABILITY. If the Executive's employment is terminated
by reason of the Executive's Disability during the Term of this Agreement
(either prior or subsequent to a Change in Control), this Agreement shall
terminate without further obligations to the Executive, other than for
payment of Accrued Obligations (as defined in Section 4.1) (which shall be
paid to the Executive in a lump sum in cash within ten (10) days of the Date
of Termination).
4.5 TERMINATION FOR CAUSE; EXECUTIVE'S TERMINATION
OTHER THAN FOR GOOD REASON AFTER A CHANGE IN CONTROL. If the
Executive's employment shall be terminated for Cause during the Term of this
Agreement (either prior to or subsequent to a Change in Control), this
Agreement shall terminate without further obligations to the Executive other
than the obligation to pay to the Executive Accrued Obligations (as defined
in Section 4.1). If the Executive terminates employment with the Company
during the Term of this Agreement, (other than for Good Reason after a Change
in Control) this Agreement shall terminate without further obligations to the
Executive, other than for Accrued Obligations (as defined in Section 4.1).
In such case, all Accrued Obligations shall be paid to the Executive in a
lump sum cash payment within thirty (30) days of the Date of Termination. If
the Executive's employment shall terminate for the reasons stated in this
Section, the provisions of Section 5 shall continue to apply.
4.6 NON-EXCLUSIVITY OF RIGHTS. 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 and for which the Executive may qualify, nor shall anything herein
limit or otherwise affect such rights as the Executive may have under any
contract or agreement with the Company. Amounts which are vested benefits of
which the Executive is otherwise entitled to receive under any plan, policy,
practice or program of, or any contract or agreement with, the Company 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.
4.7 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 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, only on and
after a Change in Control Date to pay promptly as incurred, to the full
extent permitted by law, all legal fees and expenses which the Executive may
reasonable 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 regarding 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 Code Section 7872(f)(2)(A).
4.8 RESOLUTION OF DISPUTES. If there shall be any
dispute between the Company and the Executive (i) in the event of any
termination of the Executive's employment by the Company, whether such
termination was for Cause, or (ii) in the event of any termination of
employment by the Executive,
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whether Good Reason existed, then, unless and until there is a final,
nonappealable judgment by a court of competent jurisdiction declaring that such
termination was for Cause or that the determination by the Executive of the
existence of Good Reason was not made in good faith, the Company shall, only on
and after a Change in Control Date pay all amounts, and provide all benefits, to
the Executive and/or the Executive's family or other beneficiaries, as the case
may be, that the Company would be required to pay or provide pursuant to Section
4.2 as though such termination were by the Company without Cause or by the
Executive with Good Reason; provided, however, that the Company shall not be
required to pay any disputed amounts pursuant to this paragraph except upon
receipt of an undertaking by or on behalf of the Executive to repay all such
amounts to which the Executive is ultimately adjudged by such court not to be
entitled.
SECTION 5: CONFIDENTIAL INFORMATION.
CONFIDENTIAL INFORMATION. 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
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. In no event shall an asserted violation
of the provisions of this Section constitute a basis for deferring or
withholding any amounts otherwise payable to the Executive under this
Agreement.
SECTION 6: SUCCESSORS.
6.1 SUCCESSORS OF EXECUTIVE. This Agreement is personal
to the Executive and, without the prior written consent of the Company,
amounts receivable hereunder 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.
6.2 SUCCESSORS OF COMPANY. 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. Failure of the Company to obtain
such agreement upon the effectiveness of any such succession shall be a
breach of this Agreement and shall entitle the Executive to terminate the
Agreement at the Executive's option on or after the Change in Control Date
for Good Reason. As used in this Agreement, "Company" shall mean the Company
as hereinbefore defined and any successor to its business and/or assets which
assumes and agrees to perform this Agreement by operation of law, or
otherwise.
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SECTION 7: TERMS OF AGREEMENT.
This Agreement will automatically renew for annual one-year
periods beginning on January 1 of each year and ending on the following
December 31; provided that, the last annual period shall be the twelve (12)
month period beginning on January 1 and ending on the following December 31
during which written notice is given by December 1, by either party, of such
party's intent not to renew this Agreement. If notice is given by either
party after December 1 of any year, but prior to January 1 of the next
succeeding year, then the last renewal period shall be the twelve (12) month
period which begins on the January 1 following the date notice is given and
ending the following December 31. Notwithstanding the foregoing, in the
event a Change in Control shall have occurred, this Agreement shall terminate
two (2) years after a Change in Control Date.
SECTION 8: MISCELLANEOUS.
8.1 NOTICE. For purposes of this Agreement, notices and
all other communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when delivered or mailed by
certified or registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses as set forth below; provided that all
notices to the Company shall be directed to the attention of the Chairman of
the Board of the Company with a copy to the Secretary of the Company, or to
such other address as one party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be
effective only upon receipt.
Notice to Executive:
-------------------
Xxxxxxxx X. Xxxxxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Notice to Company:
-----------------
Magna Group, Inc.
0000 Xxxxx Xxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
8.2 VALIDITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement.
8.3 WITHHOLDING. The Company may withhold from any amounts
payable under this Agreement such Federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
8.4 WAIVER. The Executive's or the Company's failure to
insist upon strict compliance with any provision hereof or any other
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
3.5 shall not be deemed to be a waiver of such provision or right or any
other provision or right of this Agreement.
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8.5 EFFECT ON OTHER EMPLOYMENT AGREEMENTS. The terms of
this Agreement shall supersede all other employment or other agreements with
respect to severance entered into by and between the Executive and the
Company, or the Executive and any other employer, and this Agreement shall
constitute the sole agreement pursuant to which the Company shall have an
obligation to the Executive upon the termination of the Executive's
relationship with the Company or any subsidiary.
IN WITNESS WHEREOF, the Executive and the Company, pursuant to
the authorization from its Board, have caused this Agreement to be executed
in its name on its behalf, all as of the day and year first above written.
/s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------------------
Executive
MAGNA GROUP, INC.
By /s/ G. Xxxxxx Xxxxx
-----------------------------------------
Name: G. Xxxxxx Xxxxx
Title: Chairman of the Board,President and
Chief Executive Officer
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