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MAGNA GROUP, INC.
AGREEMENT
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This agreement ("Agreement") has been entered into this 12th day
of March, 1996, by and between Magna Group, Inc., a Delaware corporation
("Company"), and Xxxxxx X. Xxxxx, Xx., 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 that
would be reported to the Internal Revenue Service as
compensation on Form W-2 or any successor form.
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
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"beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), 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.
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 January 1, 1996.
1.1(h) "EXCHANGE ACT" means the Securities Exchange Act
of 1934, as amended.
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.
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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.
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
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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 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
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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;
(iv) a material breach by the Company of any provision of this
Agreement;
(v) 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.
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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.
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
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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.
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
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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
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, 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
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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, 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
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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.
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.
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11
Notice to Executive:
-------------------
Xxxxxx X. Xxxxx, Xx.
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 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.
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/ Xxxxxx X. Xxxxx, Xx.
-------------------------------------------
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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