ALLEGIANT BANCORP, INC.
EXECUTIVE RETENTION AGREEMENT
This Executive Retention Agreement (this "Agreement") has
been entered into as of the 24th day of May, 1999, by and between
Allegiant Bancorp, Inc., a Missouri corporation (the "Company"), and
Xxxxx X. Xxxxx, 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 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) with respect to the
Company. The Board desires to provide for the continued employment of
the Executive, 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 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" shall mean the rate of
base salary (excluding benefits, bonuses,
incentive compensation or other forms of
compensation or benefits) at which Executive
is being paid as of a particular date.
1.1(b) "BOARD" means the Board of Directors of the
Company.
1.1(c) "CHANGE IN CONTROL" means:
(i) The acquisition by any individual,
entity or group, or (within the meaning of
Section 13(d)(3) or 14(d)(2), the Exchange
Act), a Person of ownership of 30% or more
of either (a) the then outstanding shares of
common stock of the Company (the "Outstanding
Company Common Stock") or (b) the combined voting
power of the then outstanding voting securities of
the Company entitled to vote generally in the
election of directors (the "Outstanding Company
Voting Securities"); or
(ii) Individuals who, as of the date
hereof, constitute the Board (the "Incumbent
Board") cease for any reason to constitute at
least a majority of the Board; provided,
however, that for purposes of the definition
of "Incumbent Board," any individual becoming
a director subsequent to the date hereof
whose election, or nomination for election by
the Company's stockholders, was approved by a
vote of at least a majority of the directors
then comprising the Incumbent Board shall be
considered as though such individual were a
member of the Incumbent Board, but excluding,
as a member of the Incumbent Board, any such
individual whose initial assumption of office
occurs as a result of either an actual or
threatened election contest (as such terms
are used in Rule l4a-11 of Regulation l4A
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; or
(iii) Approval by the stockholders of
the Company (and subsequent consummation) of
a reorganization, merger or consolidation, in
each case, unless, following such
reorganization, merger or consolidation,
(a) more than fifty percent (50%) of,
respectively, the then outstanding shares of
common stock of the corporation resulting
from such reorganization, merger or
consolidation and the combined voting power
of the then outstanding voting securities of
such corporation entitled to vote generally
in the election of directors is then
beneficially owned, directly or indirectly,
by all or substantially all of the
individuals and entities who were the
beneficial owners, respectively, of the
Outstanding Company Common Stock and
Outstanding Company Voting Securities
immediately prior to such reorganization,
merger or consolidation in substantially the
same proportions as their ownership,
immediately prior to such reorganization,
merger or consolidation, of the Outstanding
Company Common Stock and Outstanding Company
Voting Securities, as the case may be, (b) no
Person (excluding the Company, any employee
benefit plan (or related trust) of the
Company or such corporation resulting from
such reorganization, merger or consolidation
and any Person beneficially owning,
immediately prior to such reorganization,
merger or consolidation, directly or
indirectly, twenty percent (20%) or more of
the Outstanding Company Common Stock or
Outstanding Voting Securities, as the case
may be) beneficially owns, directly or
indirectly, twenty percent (20%) or more of,
respectively, the then outstanding shares of
common stock of the corporation resulting
from such reorganization, merger or
consolidation or the combined voting power of
the then outstanding voting securities of
such corporation, entitled to vote generally
in the election of directors and (c) at least
a majority of the members of the board of
directors of the corporation resulting from
such reorganization, merger or consolidation
were members of the Incumbent Board at the
time of the execution of the initial
agreement providing for such reorganization,
merger or consolidation; or
(iv) Approval by the stockholders of
the Company (and consummation) of (a) a
complete liquidation or dissolution of the
Company or (b) the sale or other disposition
of all or substantially all of the assets of
the Company, other than to a corporation,
with respect to which following such sale or
other disposition, (1) more than fifty
percent (50%) of, respectively, the then
outstanding shares of common stock of such
corporation and the combined voting power of
the then outstanding voting securities of
such corporation entitled to vote generally
in the election of directors is then
beneficially owned, directly or indirectly,
by all or substantially all of the
individuals and entities who were the
beneficial owners, respectively, of the
Outstanding Company Common Stock and
Outstanding Company Voting Securities
immediately prior to such sale or other
disposition in substantially the same
proportion as their
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ownership, immediately prior to such sale or
other disposition, of the Outstanding Company
Common Stock and Outstanding Company Voting
Securities, as the case may be, (2) no Person
(excluding the Company and any employee
benefit plan (or related trust) of the
Company or such corporation and any Person
beneficially owning, immediately prior to
such sale or other disposition, directly or
indirectly, twenty percent (20%) or more of
the Outstanding Company Common Stock or
Outstanding Company Voting Securities, as the
case may be) beneficially owns, directly or
indirectly, twenty percent (20%) or more of,
respectively, the then outstanding shares of
common stock of such corporation and the
combined voting power of the then outstanding
voting securities of such corporation
entitled to vote generally in the election of
directors and (3) at least a majority of the
members of the board of directors of such
corporation were members of the Incumbent
Board at the time of the execution of the
initial agreement or action of the Board
providing for such sale or other disposition
of assets of the Company.
1.1(d) "CHANGE IN CONTROL DATE" shall mean the date
of the Change in Control; provided, however,
that the Change in Control Date shall mean
the date immediately prior to the date the
Executive's employment with the Company was
terminated by the Company if (i) Executive's
employment with the Company was terminated by
the Company prior to the occurrence of a
Change in Control, and (ii) Executive's
employment (either in fact or as reasonably
demonstrated by Executive) was terminated
either at the request of a third party who
has taken steps reasonably calculated to
effect a Change in Control, or otherwise
occurred in connection with or anticipation
of a Change in Control.
1.1(e) "CODE" shall mean the Internal Revenue Code
of 1986, as amended.
1.1(f) "COMPANY" means Allegiant Bancorp, Inc., a
Missouri corporation.
1.1(g) "EFFECTIVE DATE" shall mean February 1, 1999.
1.1(h) "EXCHANGE ACT" means the Securities Exchange
Act of 1934, as amended.
1.1(i) "PERSON" means any "person" within the
meaning of Sections 13(d) and 14(d) of the
Exchange Act.
1.1(j) "TERM" means the period that begins on the
Effective Date and ends on the earlier of:
(i) January 1, 2005, or (ii) the date
Executive's employment terminates.
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.
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SECTION 2: EMPLOYMENT; EMPLOYMENT TERMINATION.
2.1 EMPLOYMENT BEFORE A CHANGE IN CONTROL. Executive is
employed by the Company on an at will basis for no definite term. Either
the Company or Executive may terminate Executive's employment at any
time with or without cause by giving notice to the other party. Upon
termination of Executive's employment with the Company prior to a Change
in Control, whether employment is terminated by the Company, by
Executive, or otherwise, this Agreement shall terminate and neither party
shall have any rights or obligations hereunder except to the extent
provided for under Section 3 or otherwise under this Agreement; provided,
however, that Executive shall have all rights under this Agreement as if
a Change in Control occurred on the date immediately before the date
Executive's employment with the Company was terminated by the Company if
(i) Executive's employment with the Company was terminated by the Company
prior to the occurrence of a Change in Control, and (ii) Executive's
employment (either in fact or as reasonably demonstrated by Executive)
was terminated either at the request of a third party who has taken steps
reasonably calculated to effect a Change in Control, or otherwise
occurred in connection with or anticipation of a Change in Control.
2.2 TERMINATION OF EMPLOYMENT AFTER A CHANGE IN CONTROL.
After a Change in Control, the following provisions shall apply.
2.21 DEATH. The Executive's employment shall terminate
automatically upon the Executive's death.
2.22 DISABILITY. If the Company determines in good faith
that the Disability of the Executive has occurred (pursuant to the
definition of Disability set forth below), it may give to the Executive
written notice in accordance with Section 6.1 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 (with reasonable
accommodation) for a period of one hundred eighty (180) consecutive
business days by reason of a physical and/or mental condition.
"Disability" shall be 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.
2.23 TERMINATION FOR CAUSE. The Company may terminate the
Executive's employment after a Change in Control for "Cause," which shall
mean termination based upon: (i) the Executive's willful and continued
failure to substantially perform 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
Executive by the Company, which specifically identifies the manner in
which the Executive has not substantially performed Executive's duties,
(ii) the Executive's commission of an act in connection with Executive's
employment constituting a criminal offense involving moral turpitude,
dishonesty, or breach of trust, (iii) Executive has engaged in any
conduct which would preclude Executive from employment with the Company
or any of its subsidiary banks or corporations, or the Executive is
disqualified or precluded from being employed by or providing any
services to the Company or any of its subsidiary banks or corporations by
reason of any federal or state banking law or regulation or any order or
written request of any regulatory agency which has jurisdiction over
Company or any of its subsidiaries, or (iv) the Executive's material
breach of any provision of this Agreement. For purposes of this Section,
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
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the foregoing, the Executive shall not be deemed to have been terminated
for Cause unless and until (i) Executive receives a Notice of Termination
(as defined in Section 2.26) from the Company, (ii) 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.
2.24 GOOD REASON. After a Change In Control, the Executive
may terminate Executive's employment with the Company for "Good Reason,"
which shall mean termination based upon:
(i) Any action by the Company which results in a
material diminution in the duties or responsibilities held by
Executive as of the Change in Control Date, 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 and any actions which are a
necessary incident of a merger or consolidation (e.g., the
elimination or consolidation of a position) provided the
Executive is assigned duties and responsibilities of an
executive nature in lieu thereof;
(ii) The Company's reduction in the Annual Base
Salary at which the Executive was paid as of the Change in
Control Date;
(iii) (a) 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 was entitled as of the
Change in Control Date, (b) the taking of any action by the
Company which would adversely affect the Executive's
participation in, or materially reduce the Executive's
benefits under, any such plan or benefit, or deprive the
Executive of any material fringe benefit enjoyed by the
Executive as of the Change in Control Date, or (c) the
failure by the Company to provide the Executive with the
number of paid vacation days which the Executive was entitled
to receive on an annual basis as of the Change in Control
Date.
(iv) the Company's requiring the Executive to be
regularly based at any office or location outside the greater
metropolitan St. Louis area;
(v) a material breach by the Company of any
provision of this Agreement;
(vi) any purported termination by the Company of
the Executive's employment otherwise than as expressly
permitted by this Agreement;
(vii) within a period ending at the close of
business on the date three (3) years after the Change in
Control Date, if the Company has failed to comply with and
satisfy Section 5.2 on or after the Change in Control Date;
or
(viii) within a period ending at the close of
business on the date eighteen (18) months after the Change in
Control Date, the Executive, in the Executive's sole and
absolute discretion, determines that Executive no longer
wishes to be employed by the Company and notifies the Company
in writing that the Executive is terminating Executive's
employment with the Company as of a date not less than twenty
(20) days, and not more than sixty (60) days (unless the
Company otherwise agrees to a later termination date), after
the date the notice is given.
For purposes of this Section any good faith determination of "Good
Reason" made by the Executive shall be conclusive.
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2.25 TERMINATION WITHOUT CAUSE AFTER A CHANGE IN CONTROL.
After a Change in Control, the Company shall continue to have the right
to terminate Executive's employment without Cause (in which case the
provisions of Section 3.2 apply) and for any or no reason, and nothing in
this Agreement shall be construed as limiting the Company's right to
terminate Executive's employment at any time without cause and for any or
no reason.
2.26 NOTICE OF TERMINATION. Any termination by the Company
for Cause or Disability, or by the Executive for Good Reason, shall be
communicated by Notice of Termination to the other party, given in
accordance with Section 6.1. 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, except as otherwise provided
for in Section 2.24(viii)). 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.
2.27 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 Termination shall be the
date of receipt of the Notice of Termination or any later date specified
therein, as the case may be, (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, or (iii) if the Executive's employment is
terminated by the Company other than for Cause, death, or Disability, the
Date of Termination shall be the date of receipt of the Notice of
Termination; provided that if within thirty (30) days after any Notice of
Termination is given, the party receiving such Notice of Termination
notifies the other party that a dispute exists concerning the
termination, the Date of Termination shall be the date on which the
dispute is finally determined, either by mutual written agreement of the
parties, or by a final judgment, order or decree of a court of competent
jurisdiction (the time for appeal therefrom having expired and no appeal
having been perfected).
SECTION 3: CERTAIN BENEFITS UPON TERMINATION.
3.1 TERMINATION OF EMPLOYMENT PRIOR TO A CHANGE IN CONTROL.
If, prior to a Change in Control: (i) the Company shall terminate
the Executive's employment, or (ii) the Executive shall terminate
employment with the Company, then:
3.1(a) "Accrued Obligations": The Company shall pay to the
Executive the sum of (1) the Executive's Annual Base
Salary through the Date of Termination to the extent
not previously paid, (2) any compensation previously
deferred by the Executive (together with any accrued
interest or earnings thereon) and (3) any accrued
vacation pay; in each case to the extent not
previously paid.
3.1(b) "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
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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.
3.2 BENEFITS UPON TERMINATION OF EMPLOYMENT AFTER A
CHANGE IN CONTROL WITHOUT CAUSE OR FOR GOOD REASON. If a Change in Control
occurs while Executive is employed by the Company, and within three (3)
years after a 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 upon
satisfaction of the conditions set forth in Section 3.9 below (with
respect to the payments specified in Section 3.2 (b)) the Executive shall
be entitled to the benefits provided below:
3.2(a) "Accrued Obligations": Within thirty (30) days after
the Date of Termination, the Company shall pay to the
Executive the sum of (1) the Executive's Annual Base
Salary through the Date of Termination to the extent
not previously paid, (2) any compensation previously
deferred by the Executive (together with any accrued
interest or earnings thereon) and (3) any accrued
vacation pay; in each case to the extent not
previously paid.
3.2(b) "Severance Amount": Within thirty (30) days after
the Date of Termination and satisfaction of the
provisions of Section 3.9, and subject to the
provisions of Section 3.5, the Company shall pay to
the Executive as severance pay in a lump sum, in
cash, an amount equal to two and ninety-nine one
hundredths (2.99) times Executive's Annual Base
Salary; as such amount may be reduced pursuant to the
provisions of Section 3.5.
3.2(c) "Stock Options": To the extent not otherwise
provided for under the terms of the Company's stock
option plan or the Executive's stock option
agreements (if any), 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
for six months following the Date of Termination.
3.2(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; to the
extent permissible under the terms of the applicable
plan and applicable law.
3.3 DEATH; DISABILITY. If the Executive's employment
is terminated by reason of the Executive's death during the Employment
Period (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, other than for (i) payment of
Accrued Obligations (as defined in Section 3.2(a)) (which shall be paid
to the Executive's estate or beneficiary, as applicable, in a lump sum in
cash within thirty (30) days of the Date of Termination) and (ii) the
timely payment or provision of Other Benefits (as defined in Section
3.1(b)), including death benefits pursuant to the terms of any plan,
policy, or arrangement of the Company.
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If the Executive's employment is terminated by reason of the
Executive's Disability during the Employment Period (either prior or
subsequent to a Change in Control), this Agreement shall terminate
without further obligations to the Executive, other than for (i) payment
of Accrued Obligations (as defined in Section 3.2(a)) (which shall be
paid to the Executive in a lump sum in cash within thirty (30) days of
the Date of Termination) and (ii) the timely payment or provision of
Other Benefits (as defined in Section 3.1(d)) including disability
benefits pursuant to the terms of any plan, policy or arrangement of the
Company.
3.4 TERMINATION FOR CAUSE; OTHER THAN GOOD REASON. If the
Executive's employment shall be terminated for Cause during the
Employment Period (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 the
Executive's Accrued Compensation (as defined in this Section). If the
Executive terminates employment with the Company during the Employment
Period, (excluding a termination for Good Reason), this Agreement shall
terminate without further obligations to the Executive, other than for
the payment of Accrued Compensation (as defined in this Section) and the
timely payment or provision of Other Benefits (as defined in Section
3.1(d)). In such case, all Accrued Compensation shall be paid to the
Executive in a lump sum in cash within thirty (30) days of the Date of
Termination.
For the purpose of this Section, the term "Accrued Compensation"
means the sum of (i) the Executive's Annual Base Salary through the Date
of Termination to the extent not previously paid, (ii) any compensation
previously deferred by the Executive (together with any accrued interest
or earnings thereon), and (iii) any accrued vacation pay in each case to
the extent not previously paid.
3.5 "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.
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 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 Executive's election within ten (10) days of
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 Section
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
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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 Agreement 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. 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).
3.6 NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall
prevent or limit the Executive's entitlement to accrued benefits under
any plan, program, policy or practice provided by the Company and for
which the Executive may qualify. 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.
3.7 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.
3.8 RESOLUTION OF DISPUTES. If after a Change in Control 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, 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 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 this Agreement 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 Section 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.
3.9 CONDITIONS TO PAYMENTS. To be eligible to receive (and
continue to receive) and retain the payments and benefits described in
Section 3.2 (b), Executive must execute and deliver to the Company an
agreement, in form and substance satisfactory to the Company, effectively
releasing and giving up all claims Executive may have against the Company
or any of its subsidiaries or affiliates (and each of their
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respective employees, officers, plans or agents) arising out of any facts
or conduct occurring prior to that date. The agreement will be prepared by
the Company and provided to Executive at the time Executive's employment is
terminated or as soon as administratively practicable thereafter. The
agreement will require Executive to consult with Company representatives,
and voluntarily appear as a witness for trial or deposition (and to prepare
for any such testimony) in connection with, any claim which may be asserted
by or against the Company, or any business matter concerning the Company or
any of its transactions or operations.
SECTION 4: NON-COMPETITION. The provisions of this Section 4 and any
related provisions survive termination of this Agreement and/or
Executive's employment with the Company.
4.1 NON-COMPETE AGREEMENT.
4.1(a) It is agreed that during the period beginning on the
date the Executive's employment with the Company
terminates and ending one (1) year thereafter, the
Executive shall not, without prior written approval
of the Board, become an officer, employee, agent,
partner, or director of any business enterprise in
substantial direct competition (as defined in Section
4.1(b)) with the Company; provided that, if the
Executive is terminated by the Company without Cause
or if the Executive terminates Executive's employment
for Good Reason, then Executive will not be subject
to the restrictions of this Section.
4.1(b) For purposes of Section 4.1, a business enterprise
with which the Executive becomes associated as an
officer, employee, agent, partner, or director shall
be considered in substantial direct competition, if
such entity competes with the Company in any business
in which the Company or any of its direct or indirect
subsidiaries is engaged and is within the Company's
market area (as defined herein) as of the date the
Executive's Company employment terminates. The
Company's market area is defined for this purpose, as
the greater metropolitan St. Louis area, including
without limitation the City of St. Louis and the
Counties of St. Louis, St. Xxxxxxx, and Xxxxxxxxx, in
Missouri and the Counties of Madison and St. Clair in
Illinois.
4.1(c) The above constraint shall not prevent the Executive
from making passive investments, not to exceed five
percent (5%), in any enterprise.
4.2 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 or direct or indirect subsidiaries, 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,
use, or 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 5: SUCCESSORS.
5.1 SUCCESSORS OF EXECUTIVE. This Agreement is personal to the
Executive and, without the prior written consent of the Company, the
rights (but not the obligations) shall not be assignable by the
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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.
5.2 SUCCESSORS OF COMPANY. This Agreement is freely assignable
by the 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 prior to the effectiveness of any such succession shall be a
breach of this Agreement and shall entitle the Executive to terminate the
Agreement at 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.
SECTION 6: MISCELLANEOUS.
6.1 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, 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:
-------------------
Xxxxx X. Xxxxx
00 Xxxx Xxxxxx Xxxxx
Xx. Xxxxx, XX 00000
Notice to Company:
-----------------
Allegiant Bancorp, Inc.
0000 Xxxxxx Xxxx
Xx. Xxxxx, XX 00000
Attn: Chairman of the Board
6.2 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.
6.3 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.
If any lawsuit is filed to declare this Agreement invalid in whole or in
part, or to enforce any party's rights or obligations under this
Agreement, then the party to this Agreement who prevails in such
litigation with respect to any such issue (other than by reason of a
settlement) shall be entitled to recover from the other party to this
Agreement all court costs, litigation expenses and reasonable attorney's
fees incurred by that prevailing party in defending against and/or
prosecuting that issue (as the case may be).
6.4 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
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employment for Good Reason pursuant to Section 2.24, shall not be deemed
to be a waiver of such provision or right or any other provision or right
of this Agreement.
6.5 ENTIRE AGREEMENT; NO AMENDMENT. This Agreement contains the
entire agreement between the parties respecting the subject matter hereof
and supersedes all prior oral or written communications and agreements
between the parties relating to employment or payments in the event
employment terminates. Neither this Agreement, nor any of its terms, may
be changed, added to, amended, waived or varied except in a writing
signed by Executive and the Company.
6.6 TERMINATION. This Agreement terminates on January 1, 2005
or the date Executive's employment with the Company terminates, whichever
first occurs. Termination does not affect accrued rights or obligations
(including but not limited to payment obligations under Section 3), or
(if applicable) the provisions of Section 4 or any related provisions.
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.
Date: November 20, 1999 /s/ Xxxxx X. Xxxxx
-------------------------------------
Xxxxx X. Xxxxx
ALLEGIANT BANCORP, INC.
By: /s/ Xxxxxx X. Wool
----------------------------------
Name: Xxxxxx X. Wool
--------------------------------
Date: March 9, 2000 Title: Chairman
-------------------------------
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