EMPLOYMENT AGREEMENT
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THIS AGREEMENT, made and entered into as of this ____ day of May, 2000, by
and between Xxxxxxxx Financial, Inc., a Delaware corporation ("Xxxxxxxx") and
Xxxxxx X. Xxxxxxx, an individual ("Executive") to be effective on the date of
the Spin-off Distribution (as defined below).
WHEREAS, the parties expect that all of the issued and outstanding stock
of Xxxxxxxx will be distributed (the "Spin-off Distribution") to the
shareholders of Kansas City Southern Industries, Inc. ("KCSI") which has been
the parent of Xxxxxxxx since its formation on January 23, 1998; and
WHEREAS, Executive previously was employed by KCSI with duties primarily
relating to Xxxxxxxx since its formation in 1998, and Xxxxxxxx and Executive
desire for Xxxxxxxx to continue to employ Executive on the terms and conditions
set forth in this Agreement and to provide an incentive to Executive to remain
in the employ of Xxxxxxxx hereafter, particularly in the event of any Change in
Control (as herein defined) of Xxxxxxxx or any Significant Subsidiary (as
herein defined), thereby establishing and preserving continuity of management
of Xxxxxxxx.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, it is agreed by and between Xxxxxxxx and Executive as
follows:
1. EMPLOYMENT. Xxxxxxxx hereby employs Executive as its Vice President
and Chief Operating Officer to serve at the pleasure of the Board of Directors
of Xxxxxxxx (the "Xxxxxxxx Board") and to have such duties, powers and
responsibilities as may be prescribed or delegated from time to time by the
President or other officer to whom Executive reports, subject to the powers
vested in the Xxxxxxxx Board and in the stockholders of Xxxxxxxx. Executive
shall faithfully perform his duties under this Agreement to the best of his
ability and shall devote substantially all of his working time and efforts to
the business and affairs of Xxxxxxxx and its affiliates.
2. COMPENSATION.
(a) BASE COMPENSATION. Xxxxxxxx shall pay Executive as compensation
for his services hereunder an annual base salary at the rate of $_________.
Such rate shall not be increased prior to January 1, 2003 and shall not be
reduced except as agreed by the parties or except as part of a general salary
reduction program imposed by Xxxxxxxx and applicable to all officers of
Xxxxxxxx.
(b) INCENTIVE COMPENSATION. For the period of July 1, 2000 through
December 31, 2002, Executive shall not be entitled to participate in any
Xxxxxxxx incentive compensation plan.
3. BENEFITS. During the period of his employment hereunder, Xxxxxxxx
shall provide Executive with coverage under such benefit plans and programs as
are made generally available to similarly situated employees of Xxxxxxxx,
provided (a) Xxxxxxxx shall have no obligation with respect to any plan or
program if Executive is not eligible for coverage thereunder, and (b) Executive
acknowledges that stock options and other stock and equity participation awards
are granted in the discretion of the Xxxxxxxx Board or the Compensation
Committee of the Xxxxxxxx Board and that Executive has no right to receive
stock options or other equity participation awards or any particular number or
level of stock options or other awards. In determining contributions, coverage
and benefits under any disability insurance policy and under any cash
compensation-based plan provided to Executive by Xxxxxxxx, it shall be assumed
that the value of Executive's annual compensation, pursuant to this Agreement,
is ______% of Executive's annual base salary. Executive acknowledges that all
rights and benefits under benefit plans and programs shall be governed by the
official text of each such plan or program and not by any summary or
description thereof or any provision of this Agreement (except to the extent
this Agreement expressly modifies such benefit plans or programs) and that
Xxxxxxxx is not under any obligation to continue in effect or to fund any such
plan or program, except as provided in Paragraph 7 hereof. Xxxxxxxx also shall
reimburse Executive for ordinary and necessary travel and other business
expenses in accordance with policies and procedures established by Xxxxxxxx.
4. TERMINATION.
(a) TERMINATION BY EXECUTIVE. Executive may terminate this
Agreement and his employment hereunder by at least thirty (30) days advance
written notice to Xxxxxxxx, except that in the event of any material breach of
this Agreement by Xxxxxxxx, Executive may terminate this Agreement and his
employment hereunder immediately upon notice to Xxxxxxxx.
(b) DEATH OR DISABILITY. This Agreement and Executive's employment
hereunder shall terminate automatically on the death or disability of
Executive, except to the extent employment is continued under Xxxxxxxx'x
disability plan. For purposes of this Agreement, Executive shall be deemed to
be disabled if he qualifies for disability benefits under Xxxxxxxx'x long-term
disability plan.
(c) TERMINATION BY XXXXXXXX FOR CAUSE. Xxxxxxxx may terminate this
Agreement and Executive's employment "for cause" immediately upon notice to
Executive. For purposes of this Agreement (except for Paragraph 7),
termination "for cause" shall mean termination based upon any one or more of
the following:
(i) Any material breach of this Agreement by Executive;
(ii) Executive's dishonesty involving Xxxxxxxx or any
subsidiary of Xxxxxxxx;
(iii) Gross negligence or willful misconduct in the performance
of Executive's duties as determined in good faith by the Xxxxxxxx Board;
(iv) Willful failure by Executive to follow reasonable
instructions of the President or other officer to whom Executive reports
concerning the operations or business of Xxxxxxxx or any subsidiary of
Xxxxxxxx;
(v) Executive's fraud or criminal activity; or
(vi) Embezzlement or misappropriation by Executive.
(d) TERMINATION BY XXXXXXXX OTHER THAN FOR CAUSE.
(i) Xxxxxxxx may terminate this Agreement and Executive's
employment other than for cause immediately upon notice to Executive, and
in such event, Xxxxxxxx shall provide severance benefits to Executive in
accordance with Paragraph 4(d)(ii) below.
(ii) Unless the provisions of Paragraph 7 of this Agreement
are applicable, if Executive's employment is terminated under Paragraph
4(d)(i), Xxxxxxxx shall continue, for a period of ____ (__) year following
such termination, (a) to pay to Executive as severance pay a monthly
amount equal to one-twelfth (1/12th) of the annual base salary referenced
in Paragraph 2(a) above, at the rate in effect immediately prior to
termination, and, (b) to reimburse Executive for the cost (including
state and federal income taxes payable with respect to this reimbursement)
of continuing the health insurance coverage provided pursuant to this
Agreement or obtaining health insurance coverage comparable to the health
insurance provided pursuant to this Agreement, and obtaining coverage
comparable to the life insurance provided pursuant to this Agreement,
unless Executive is provided comparable health or life insurance coverage
in connection with other employment. The foregoing obligations of
Xxxxxxxx shall continue until the end of such ______(__) year period
notwithstanding the death or disability of Executive during said period
(except, in the event of death, the obligation to reimburse Executive for
the cost of life insurance shall not continue). In the year in which
termination of employment occurs, Executive shall be eligible to receive
benefits under the Xxxxxxxx Incentive Compensation Plan and the Xxxxxxxx
Executive Plan (if such Plans then are in existence and Executive was
entitled to participate immediately prior to termination) in accordance
with the provisions of such plans then applicable, and severance pay
received in such year shall be taken into account for the purpose of
determining benefits, if any, under the Xxxxxxxx Incentive Compensation
Plan but not under the Xxxxxxxx Executive Plan. After the year in which
termination occurs, Executive shall not be entitled to accrue or receive
benefits under the Xxxxxxxx Incentive Compensation Plan or the Xxxxxxxx
Executive Plan with respect to the severance pay provided herein,
notwithstanding that benefits under such plan then are still generally
available to executive employees of Xxxxxxxx. After termination of
employment, Executive shall not be entitled to accrue or receive benefits
under any other employee benefit plan or program, except that Executive
shall be entitled to participate in the Xxxxxxxx Employee Stock Ownership
Plan and the Xxxxxxxx Section 401(k) with Profit Sharing Plan Portion in
the year of termination of employment only if Executive meets all
requirements of such plans for participation in such year.
5. NON-DISCLOSURE. During the term of this Agreement and at all times
after any termination of this Agreement, Executive shall not, either directly
or indirectly, use or disclose any Xxxxxxxx trade secret, except to the extent
necessary for Executive to perform his duties for Xxxxxxxx while an employee.
For purposes of this Agreement, the term "Xxxxxxxx trade secret" shall mean any
information regarding the business or activities of Xxxxxxxx or any subsidiary
or affiliate, including any formula, pattern, compilation, program, device,
method, technique, process, customer list, technical information or other
confidential or proprietary information, that (a) derives independent economic
value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain economic
value from its disclosure or use, and (b) is the subject of efforts of Xxxxxxxx
or its subsidiary or affiliate that are reasonable under the circumstance to
maintain its secrecy. In the event of any breach of this Paragraph 5 by
Executive, Xxxxxxxx shall be entitled to terminate any and all remaining
severance benefits under Paragraph 4(d)(ii) and shall be entitled to pursue
such other legal and equitable remedies as may be available.
6. DUTIES UPON TERMINATION; SURVIVAL.
(a) DUTIES. Upon termination of this Agreement by Xxxxxxxx or
Executive for any reason, Executive shall immediately return to Xxxxxxxx all
Xxxxxxxx trade secrets which exist in tangible form and shall sign such written
resignations from all positions as an officer, director or member of any
committee or board of Xxxxxxxx and all direct and indirect subsidiaries and
affiliates of Xxxxxxxx as may be requested by Xxxxxxxx and shall sign such
other documents and papers relating to Executive's employment, benefits and
benefit plans as Xxxxxxxx may reasonably request.
(b) SURVIVAL. The provisions of Paragraphs 5, 6(a) and 7 of this
Agreement shall survive any termination of this Agreement by Xxxxxxxx or
Executive, and the provisions of Paragraph 4(d)(ii) shall survive any
termination of this Agreement by Xxxxxxxx under Paragraph 4(d)(i).
7. CONTINUATION OF EMPLOYMENT UPON CHANGE IN CONTROL OF XXXXXXXX.
(a) CONTINUATION OF EMPLOYMENT. Subject to the terms and
conditions of this Paragraph 7, in the event of a Change in Control (as
defined in Paragraph 7(d)) at any time during the term of this Agreement,
Executive agrees to remain in the employ of Xxxxxxxx for a period of three
years (the "Three-Year Period") from the date of such Change in Control (the
"Control Change Date"). Xxxxxxxx agrees to continue to employ Executive for
the Three-Year Period. During the Three-Year Period, (i) the Executive's
position (including offices, titles, reporting requirements and
responsibilities), authority and duties shall be at least commensurate in all
material respects with the most significant of those held, exercised and
assigned at any time during the 12 month period immediately before the Control
Change Date and (ii) the Executive's services shall be performed at the
location where Executive was employed immediately before the Control Change
Date or at any other location less than 40 miles from such former location.
During the Three-Year Period, Xxxxxxxx shall continue to pay to Executive an
annual base salary on the same basis and at the same intervals as in effect
prior to the Control Change Date at a rate not less than 12 times the highest
monthly base salary paid or payable to the Executive by Xxxxxxxx in respect of
the 12-month period immediately before the Control Change Date.
(b) BENEFITS. During the Three-Year Period, Executive shall be
entitled to participate, on the basis of his executive position, in each of
the following Xxxxxxxx plans (together, the "Specified Benefits") in
existence, and in accordance with the terms thereof, at the Control Change
Date:
(i) any benefit plan, and trust fund associated therewith,
related to (a) life, health, dental, disability, accidental death and
dismemberment insurance or accrued but unpaid vacation time, (b) profit
sharing, thrift or deferred savings (including deferred compensation,
such as under Section 401(k) plans), (c) retirement or pension benefits,
(d) ERISA excess benefits and similar plans and (e) tax favored employee
stock ownership (such as under ESOP, and Employee Stock Purchase
programs); and
(ii) any other benefit plans hereafter made generally
available to executives of Executive's level or to the employees of
Xxxxxxxx generally.
In addition, Xxxxxxxx shall use its best efforts to cause all outstanding
options held by Executive under any stock option plan of Xxxxxxxx or its
affiliates to become immediately exercisable on the Control Change Date and to
the extent that such options are not vested and are subsequently forfeited,
the Executive shall receive a lump-sum cash payment within 5 days after the
options are forfeited equal to the difference between the fair market value of
the shares of stock subject to the non-vested, forfeited options determined as
of the date such options are forfeited and the exercise price for such
options. During the Three-Year Period Executive shall be entitled to
participate, on the basis of his executive position, in any incentive
compensation plan of Xxxxxxxx in accordance with the terms thereof at the
Control Change Date; provided that if under Xxxxxxxx programs or Executive's
Employment Agreement in existence immediately prior to the Control Change
Date, there are written limitations on participation for a designated time
period in any incentive compensation plan, such limitations shall continue
after the Control Change Date to the extent so provided for prior to the
Control Change Date.
If the amount of contributions or benefits with respect to the Specified
Benefits or any incentive compensation is determined on a discretionary basis
under the terms of the Specified Benefits or any incentive compensation plan
immediately prior to the Control Change Date, the amount of such contributions
or benefits during the Three-Year Period for each of the Specified Benefits
shall not be less than the average annual contributions or benefits for each
Specified Benefit for the three plan years ending prior to the Control Change
Date and, in the case of any incentive compensation plan, the amount of the
incentive compensation during the Three-Year Period shall not be less than 75%
of the maximum that could have been paid to the Executive under the terms of
the incentive compensation plan.
(c) PAYMENT. With respect to any plan or agreement under which
Executive would be entitled at the Control Change Date to receive Specified
Benefits or incentive compensation as a general obligation of Xxxxxxxx which
has not been separately funded (including specifically, but not limited to,
those referred to under Paragraph 7(b)(i) and (ii) above), Executive shall
receive within five (5) days after such date full payment in cash (discounted
to the then present value on the basis of a rate of seven percent (7%) per
annum) of all amounts to which he is then entitled thereunder.
(d) CHANGE IN CONTROL. Except as provided in the last sentence of
this Paragraph 7(d), for purposes of this Agreement, a "Change in Control"
means any one or more of the following:
(i) the acquisition or holding by any person, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934 (the "Exchange Act"), other than by Xxxxxxxx or any
Subsidiary (as defined below), or any employee benefit plan of Xxxxxxxx
or a Subsidiary (and other than by KCSI prior to the Spin-off
Distribution), of beneficial ownership (within the meaning of Rule 13d-3
under the Exchange Act) of 20% or more of the then-outstanding common
stock or the combined voting power of the then-outstanding voting
securities ("Voting Power") of Xxxxxxxx; PROVIDED, HOWEVER, that no
Change in Control shall occur solely by reason of any such acquisition by
a corporation with respect to which, after such acquisition, more than
60% of both the then-outstanding common shares and the then-outstanding
Voting Power of such corporation are then beneficially owned, directly or
indirectly, by the persons who were the beneficial owners of the then-
outstanding common stock and Voting Power of Xxxxxxxx immediately before
such acquisition, in substantially the same proportions as their
respective ownership, immediately before such acquisition, of the then-
outstanding common stock and Voting Power of Xxxxxxxx; or
(ii) individuals who, as of the date of the Spin-off
Distribution, constitute the Xxxxxxxx Board (the "Incumbent Board") cease
for any reason to constitute at least 75% of the Xxxxxxxx Board; PROVIDED
that any individual who becomes a director after the Spin-off
Distribution whose election or nomination for election by the
stockholders of Xxxxxxxx was approved by at least 75% of the Incumbent
Board (other than an election or nomination of an individual whose
initial assumption of office is in connection with an actual or
threatened "election contest" relating to the election of the directors
of Xxxxxxxx (as such terms are used in Rule 14a-11 under the Exchange
Act) or "tender offer" (as such term is used in Section 14(d) of the
Exchange Act) or a proposed Extraordinary Transaction (as defined below))
shall be deemed to be a member of the Incumbent Board; or
(iii) approval by the stockholders of Xxxxxxxx of any one or
more of the following:
(A) a merger, reorganization, consolidation or similar
transaction (any of the foregoing, an "Extraordinary Transaction")
with respect to which persons who were the respective beneficial
owners of the then-outstanding common stock and Voting Power of
Xxxxxxxx immediately before such Extraordinary Transaction would
not, if such Extraordinary Transaction were to be consummated
immediately after such stockholder approval (but otherwise in
accordance with the terms presented in writing to the stockholders
of Xxxxxxxx for their approval), beneficially own, directly or
indirectly, more than 60% of both the then-outstanding common shares
and the then-outstanding Voting Power of the corporation resulting
from such Extraordinary Transaction, in substantially the same
proportions as their respective ownership, immediately before such
Extraordinary Transaction, of the then-outstanding common stock and
Voting Power of Xxxxxxxx,
(B) a liquidation or dissolution of Xxxxxxxx, or
(C) the sale or other disposition of all or substantially
all of the assets of Xxxxxxxx in one transaction or a series of
related transactions; or
(iv) the sale or other disposition by Xxxxxxxx, directly or
indirectly, whether by merger, consolidation, combination, lease,
exchange, spin-off, split-off, or other means, of any Significant
Subsidiary or any reduction in Xxxxxxxx'x direct or indirect beneficial
ownership of any Significant Subsidiary to less than 50% of the Voting
Power of such entity.
For purposes of this Agreement, "Subsidiary" shall mean any entity of which at
least 50% of the Voting Power is beneficially owned, directly or indirectly,
by Xxxxxxxx and "Significant Subsidiary" shall mean (A) any Subsidiary which
contributed 30% or more of the total combined revenues of Xxxxxxxx and all
Subsidiaries for the prior calendar year, and (B) any one or more entities,
businesses or groups of assets directly or indirectly sold or disposed of by
Xxxxxxxx (within the meaning of paragraph 7(d)(iv)) within any two year period
that contributed 30% of more of such total combined revenues or would have
contributed such 30% based on revenues of such entities, businesses or groups
of assets for the calendar year prior to their sale or disposition.
Notwithstanding the foregoing provisions of this Paragraph 7(d) to the
contrary, the Spin-off Distribution shall not constitute a Change in Control.
(e) TERMINATION AFTER CONTROL CHANGE DATE. Notwithstanding any
other provision of this Paragraph 7, at any time after the Control Change
Date, Xxxxxxxx may terminate the employment of Executive (the "Termination"),
but unless such Termination is for Cause as defined in subparagraph (g) or for
disability, within five (5) days of the Termination Xxxxxxxx shall pay to
Executive his full base salary through the Termination, to the extent not
theretofore paid, plus a lump sum amount (the "Special Severance Payment")
equal to the product (discounted to the then present value on the basis of a
rate of seven percent (7%) per annum) of (i) ______% of his annual base salary
specified in Paragraph 7(a) multiplied by (ii) ________, and Specified
Benefits (excluding any incentive compensation) to which Executive was
entitled immediately prior to Termination shall continue until the end of the
3-year period ("Benefits Period") beginning on the date of Termination. If
any plan pursuant to which Specified Benefits are provided immediately prior
to Termination would not permit continued participation by Executive after
Termination, then Xxxxxxxx shall pay to Executive within five (5) days after
Termination a lump sum payment equal to the amount of Specified Benefits
Executive would have received under such plan if Executive had been fully
vested in the average annual contributions or benefits in effect for the three
plan years ending prior to the Control Change Date (regardless of any
limitations based on the earnings or performance of Xxxxxxxx) and a continuing
participant in such plan to the end of the Benefits Period. Following the end
of the Benefits Period, Xxxxxxxx shall continue to provide to the Executive
and the Executive's family the following benefits ("Post-Period Benefits"):
(1) prior to the Executive's attainment of age sixty (60), health,
prescription and dental benefits equivalent to those then applicable to active
peer executives of Xxxxxxxx and their families, as the same may be modified
from time to time, and (2) following the Executive's attainment of age sixty
(60) (and without regard to the Executive's period of service with Xxxxxxxx),
health and prescription benefits equivalent to those then applicable to
retired peer executives of Xxxxxxxx and their families, as the same may be
modified from time to time. The cost to the Executive of such Post-Period
Benefits shall not exceed the cost of such benefits to active or retired (as
applicable) peer executives, as the same may be modified from time to time.
Notwithstanding the preceding two sentences of this Paragraph 7(e), if the
Executive is covered under any health, prescription or dental plan provided by
a subsequent employer, then the corresponding type of plan coverage (i.e.,
health, prescription or dental) required to be provided as Post-Period
Benefits under this Paragraph 7(e) shall cease. The Executive's rights under
this Paragraph 7(e) shall be in addition to, and not in lieu of, any post-
termination continuation coverage or conversion rights the Executive may have
pursuant to applicable law, including without limitation continuation coverage
required by Section 4980 of the Code. Nothing in this Paragraph 7(e) shall be
deemed to limit in any manner the reserved right of Xxxxxxxx, in its sole and
absolute discretion, to at any time amend, modify or terminate health,
prescription or dental benefits for active or retired employees generally.
(f) RESIGNATION AFTER CONTROL CHANGE DATE. In the event of a
Change in Control as defined in Paragraph 7(d), thereafter, upon good reason
(as defined below), Executive may, at any time during the 3-year period
following the Change in Control, in his sole discretion, on not less than
thirty (30) days' written notice (the "Notice of Resignation") to the
Secretary of Xxxxxxxx and effective at the end of such notice period, resign
his employment with Xxxxxxxx (the "Resignation"). Within five (5) days of
such a Resignation, Xxxxxxxx shall pay to Executive his full base salary
through the effective date of such Resignation, to the extent not theretofore
paid, plus a lump sum amount equal to the Special Severance Payment (computed
as provided in the first sentence of Paragraph 7(e), except that for purposes
of such computation all references to "Termination" shall be deemed to be
references to "Resignation"). Upon Resignation of Executive, Specified
Benefits to which Executive was entitled immediately prior to Resignation
shall continue on the same terms and conditions as provided in Paragraph 7(e)
in the case of Termination (including equivalent payments provided for
therein), and Post-Period Benefits shall be provided on the same terms and
conditions as provided in Paragraph 7(e) in the case of Termination. For
purposes of this Agreement, "good reason" means any one or more of the
following:
(i) the assignment to the Executive of any duties which result
in a material adverse change in the Executive's position (including
status, offices, titles, and reporting requirements), authority, duties,
or other responsibilities with Xxxxxxxx, or any other action of Xxxxxxxx
which results in a material adverse change in such position, authority,
duties, or responsibilities, other than an insubstantial and inadvertent
action which is remedied by Xxxxxxxx promptly after receipt of notice
thereof given by the Executive,
(ii) any relocation of the Executive of more than 40 miles
from the place where the Executive was located at the time of the Change
in Control;
(iii) a material reduction or elimination of any component of
the Executive's rate of compensation, including (x) base salary, (y) any
incentive payment or (z) benefits or prerequisites which the Executive
was receiving immediately prior to a Change in Control, or;
(iv) any failure by Xxxxxxxx to comply with any of the
provisions of Paragraph 7;
A passage of time prior to delivery of the Notice of Resignation or a failure
by the Executive to include in the Notice of Resignation any fact or
circumstance which contributes to a showing of good reason shall not waive any
right of the Executive under this Agreement or preclude the Executive from
asserting such fact or circumstance in enforcing rights under this Agreement.
(g) TERMINATION FOR CAUSE AFTER CONTROL CHANGE DATE.
Notwithstanding any other provision of this Paragraph 7, at any time after the
Control Change Date, Executive may be terminated by Xxxxxxxx "for Cause."
Cause means commission by the Executive of any felony or willful breach of
duty by the Executive in the course of the Executive's employment, except that
Cause shall not mean:
(i) bad judgment or negligence;
(ii) any act or omission believed by the Executive in good
faith to have been in or not opposed to the interest of Xxxxxxxx (without
intent of the Executive to gain, directly or indirectly, a profit to
which the Executive was not legally entitled);
(iii) any act or omission with respect to which a
determination could properly have been made by the Xxxxxxxx Board that
the Executive met the applicable standard of conduct for indemnification
or reimbursement under Xxxxxxxx'x by-laws, any applicable indemnification
agreement, or applicable law, in each case in effect at the time of such
act or omission; or
(iv) any act or omission with respect to which Notice of
Termination of the Executive is given more than 12 months after the
earliest date on which any member of the Xxxxxxxx Board, not a party to
the act or omission, knew or should have known of such act or omission.
Any Termination of the Executive's employment by Xxxxxxxx for Cause shall be
communicated to the Executive by Notice of Termination.
(h) GROSS-UP FOR CERTAIN TAXES. If it is determined (by the
reasonable computation of Xxxxxxxx'x independent auditors, which
determinations shall be certified to by such auditors and set forth in a
written certificate ("Certificate") delivered to the Executive) that any
benefit received or deemed received by the Executive from Xxxxxxxx pursuant to
this Agreement or otherwise (collectively, the "Payments") is or will become
subject to any excise tax under Section 4999 of the Code or any similar tax
payable under any United States federal, state, local or other law (such
excise tax and all such similar taxes collectively, "Excise Taxes"), then
Xxxxxxxx shall, immediately after such determination, pay the Executive an
amount (the "Gross-up Payment") equal to the product of:
(i) the amount of such Excise Taxes;
multiplied by
(ii) the Gross-up Multiple (as defined in Paragraph 7(k).
The Gross-up Payment is intended to compensate the Executive
for the Excise Taxes and any federal, state, local or other income or
excise taxes or other taxes payable by the Executive with respect to the
Gross-up Payment.
Xxxxxxxx shall cause the preparation and delivery to the
Executive of a Certificate upon request at any time. Xxxxxxxx shall, in
addition to complying with this Paragraph 7(h), cause all determinations
and certifications under Paragraphs 7(h)-(o) to be made as soon as
reasonably possible and in adequate time to permit the Executive to
prepare and file the Executive's individual tax returns on a timely
basis.
(i) DETERMINATION BY THE EXECUTIVE.
(i) If Xxxxxxxx shall fail (a) to deliver a Certificate to the
Executive or (b) to pay to the Executive the amount of the Gross-up
Payment, if any, within 14 days after receipt from the Executive of a
written request for a Certificate, or if at any time following receipt of
a Certificate the Executive disputes the amount of the Gross-up Payment
set forth therein, the Executive may elect to demand the payment of the
amount which the Executive, in accordance with an opinion of counsel to
the Executive ("Executive Counsel Opinion"), determines to be the Gross-
up Payment. Any such demand by the Executive shall be made by delivery
to Xxxxxxxx of a written notice which specifies the Gross-up Payment
determined by the Executive and an Executive Counsel Opinion regarding
such Gross-up Payment (such written notice and opinion collectively, the
"Executive's Determination"). Within 14 days after delivery of the
Executive's Determination to Xxxxxxxx, Xxxxxxxx shall either (a) pay the
Executive the Gross-up Payment set forth in the Executive's Determination
(less the portion of such amount, if any, previously paid to the
Executive by Xxxxxxxx) or (b) deliver to the Executive a Certificate
specifying the Gross-up Payment determined by Xxxxxxxx'x independent
auditors, together with an opinion of Xxxxxxxx'x counsel ("Xxxxxxxx
Counsel Opinion"), and pay the Executive the Gross-up Payment specified
in such Certificate. If for any reason Xxxxxxxx fails to comply with
clause (b) of the preceding sentence, the Gross-up Payment specified in
the Executive's Determination shall be controlling for all purposes.
(ii) If the Executive does not make a request for, and
Xxxxxxxx does not deliver to the Executive, a Certificate, Xxxxxxxx
shall, for purposes of Paragraph 7(j), be deemed to have determined that
no Gross-up Payment is due.
(j) ADDITIONAL GROSS-UP AMOUNTS. If, despite the initial
conclusion of Xxxxxxxx and/or the Executive that certain Payments are neither
subject to Excise Taxes nor to be counted in determining whether other
Payments are subject to Excise Taxes (any such item, a "Non-Parachute Item"),
it is later determined (pursuant to subsequently-enacted provisions of the
Code, final regulations or published rulings of the IRS, final IRS
determination or judgment of a court of competent jurisdiction or Xxxxxxxx'x
independent auditors) that any of the Non-Parachute Items are subject to
Excise Taxes, or are to be counted in determining whether any Payments are
subject to Excise Taxes, with the result that the amount of Excise Taxes
payable by the Executive is greater than the amount determined by Xxxxxxxx or
the Executive pursuant to Paragraph 7(h) or Paragraph 7(i), as applicable,
then Xxxxxxxx shall pay the Executive an amount (which shall also be deemed a
Gross-up Payment) equal to the product of:
(i) the sum of (a) such additional Excise Taxes and (b) any
interest, fines, penalties, expenses or other costs incurred by the
Executive as a result of having taken a position in accordance with a
determination made pursuant to Paragraph 7(h); multiplied by
(ii) the Gross-up Multiple.
(k) GROSS-UP MULTIPLE. The Gross-up Multiple shall equal a
fraction, the numerator of which is one (1.0), and the denominator of which is
one (1.0) minus the sum, expressed as a decimal fraction, of the rates of all
federal, state, local and other income and other taxes and any Excise Taxes
applicable to the Gross-up Payment; provided that, if such sum exceeds 0.8, it
shall be deemed equal to 0.8 for purposes of this computation. (If different
rates of tax are applicable to various portions of a Gross-up Payment, the
weighted average of such rates shall be used.)
(l) OPINION OF COUNSEL. "Executive Counsel Opinion" means a legal
opinion of nationally recognized executive compensation counsel that there is
a reasonable basis to support a conclusion that the Gross-up Payment
determined by the Executive has been calculated in accord with this Paragraph
7 and applicable law. "Company Counsel Opinion" means a legal opinion of
nationally recognized executive compensation counsel that (i) there is a
reasonable basis to support a conclusion that the Gross-up Payment set forth
in the Certificate of Xxxxxxxx'x independent auditors has been calculated in
accord with this Paragraph 7 and applicable law, and (ii) there is no
reasonable basis for the calculation of the Gross-up Payment determined by the
Executive.
(m) AMOUNT INCREASED OR CONTESTED. The Executive shall notify
Xxxxxxxx in writing of any claim by the IRS or other taxing authority that, if
successful, would require the payment by Xxxxxxxx of a Gross-up Payment. Such
notice shall include the nature of such claim and the date on which such claim
is due to be paid. The Executive shall give such notice as soon as
practicable, but no later than 10 business days, after the Executive first
obtains actual knowledge of such claim; provided, however, that any failure to
give or delay in giving such notice shall affect Xxxxxxxx'x obligations under
this Paragraph 7 only if and to the extent that such failure results in actual
prejudice to Xxxxxxxx. The Executive shall not pay such claim less than 30
days after the Executive gives such notice to Xxxxxxxx (or, if sooner, the
date on which payment of such claim is due). If Xxxxxxxx notifies the
Executive in writing before the expiration of such period that it desires to
contest such claim, the Executive shall:
(i) give Xxxxxxxx any information that it reasonably requests
relating to such claim;
(ii) take such action in connection with contesting such claim
as Xxxxxxxx reasonably requests in writing from time to time, including,
without limitation, accepting legal representation with respect to such
claim by an attorney reasonably selected by Xxxxxxxx;
(iii) cooperate with Xxxxxxxx in good faith to contest such
claim; and
(iv) permit Xxxxxxxx to participate in any proceedings
relating to such claim; provided, however, that Xxxxxxxx shall bear and
pay directly all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall indemnify
and hold the Executive harmless, on an after-tax basis, for any Excise
Tax or income tax, including related interest and penalties, imposed as a
result of such representation and payment of costs and expenses. Without
limiting the foregoing, Xxxxxxxx shall control all proceedings in
connection with such contest and, at its sole option, may pursue or
forego any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may,
at its sole option, either direct the Executive to pay the tax claimed
and xxx for a refund or contest the claim in any permissible manner. The
Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or
more appellate courts, as Xxxxxxxx shall determine; provided, however,
that if Xxxxxxxx directs the Executive to pay such claim and xxx for a
refund, Xxxxxxxx shall advance the amount of such payment to the
Executive, on an interest-free basis and shall indemnify the Executive,
on an after-tax basis, for any Excise Tax or income tax, including
related interest or penalties, imposed with respect to such advance; and
further provided that any extension of the statute of limitations
relating to payment of taxes for the taxable year of the Executive with
respect to which such contested amount is claimed to be due is limited
solely to such contested amount. The Stilwell's control of the contest
shall be limited to issues with respect to which a Gross-up Payment would
be payable. The Executive shall be entitled to settle or contest, as the
case may be, any other issue raised by the IRS or other taxing authority.
(n) REFUNDS. If, after the receipt by the Executive of an amount
advanced by Xxxxxxxx pursuant to Paragraph 7(m), the Executive receives any
refund with respect to such claim, the Executive shall (subject to Xxxxxxxx'x
complying with the requirements of Paragraph 7(m)) promptly pay Xxxxxxxx the
amount of such refund (together with any interest paid or credited thereon
after taxes applicable thereto). If, after the receipt by the Executive of an
amount advanced by Xxxxxxxx pursuant to Paragraph 7(m), a determination is
made that the Executive shall not be entitled to a full refund with respect to
such claim and Xxxxxxxx does not notify the Executive in writing of its intent
to contest such determination before the expiration of 30 days after such
determination, then the applicable part of such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall
offset, to the extent thereof, the amount of Gross-up Payment required to be
paid. Any contest of a denial of refund shall be controlled by Paragraph
7(m).
(o) EXPENSES. If any dispute should arise under this Agreement
after the Control Change Date involving an effort by Executive to protect,
enforce or secure rights or benefits claimed by Executive hereunder, Xxxxxxxx
shall pay (promptly upon demand by Executive accompanied by reasonable
evidence of incurrence) all reasonable expenses (including attorneys' fees)
incurred by Executive in connection with such dispute, without regard to
whether Executive prevails in such dispute except that Executive shall repay
Xxxxxxxx any amounts so received if a court having jurisdiction shall make a
final, nonappealable determination that Executive acted frivolously or in bad
faith by such dispute. To assure Executive that adequate funds will be made
available to discharge Xxxxxxxx'x obligations set forth in the preceding
sentence, Xxxxxxxx has established a trust and upon the occurrence of a Change
in Control shall promptly deliver to the trustee of such trust to hold in
accordance with the terms and conditions thereof that sum which the Xxxxxxxx
Board shall have determined is reasonably sufficient for such purpose.
(p) PREVAILING PROVISIONS. On and after the Control Change Date,
the provisions of this Paragraph 7 shall control and take precedence over any
other provisions of this Agreement which are in conflict with or address the
same or a similar subject matter as the provisions of this Paragraph 7.
8. MITIGATION AND OTHER EMPLOYMENT. After a termination of Executive's
employment pursuant to Paragraph 4(d)(i) or a Change in Control as defined in
Paragraph 7(d), Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or
otherwise, and except as otherwise specifically provided in Paragraph 4(d)(ii)
with respect to health and life insurance and in Paragraph 7(e) with respect
to health, prescription and dental benefits, no such other employment, if
obtained, or compensation or benefits payable in connection therewith shall
reduce any amounts or benefits to which Executive is entitled hereunder. Such
amounts or benefits payable to Executive under this Agreement shall not be
treated as damages but as severance compensation to which Executive is entitled
because Executive's employment has been terminated.
9. NOTICE. Notices and all other communications to either party pursuant
to this Agreement shall be in writing and shall be deemed to have been given
when personally delivered, delivered by facsimile or deposited in the United
States mail by certified or registered mail, postage prepaid, addressed, in the
case of Xxxxxxxx, to Xxxxxxxx at 000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx
00000, Attention: Secretary, or, in the case of the Executive, to him at 00000
Xxxxx Xxxxx, Xxxxxxxx Xxxx, XX 00000, or to such other address as a party
shall designate by notice to the other party.
10. AMENDMENT. No provision of this Agreement may be amended, modified,
waived or discharged unless such amendment, waiver, modification or discharge
is agreed to in a writing signed by Executive and the President of Xxxxxxxx.
No waiver by any party hereto at any time of any breach by another party hereto
of, or compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the time or at any prior or subsequent time.
11. SUCCESSORS IN INTEREST. The rights and obligations of Xxxxxxxx under
this Agreement shall inure to the benefit of and be binding in each and every
respect upon the direct and indirect successors and assigns of Xxxxxxxx,
regardless of the manner in which such successors or assigns shall succeed to
the interest of Xxxxxxxx hereunder, and this Agreement shall not be terminated
by the voluntary or involuntary dissolution of Xxxxxxxx or by any merger or
consolidation or acquisition involving Xxxxxxxx or upon any transfer of all or
substantially all of Xxxxxxxx'x assets, or terminated otherwise than in
accordance with its terms. In the event of any such merger or consolidation or
transfer of assets, the provisions of this Agreement shall be binding upon and
shall inure to the benefit of the surviving corporation or the corporation or
other person to which such assets shall be transferred. Neither this Agreement
nor any of the payments or benefits hereunder may be pledged, assigned or
transferred by Executive either in whole or in part in any manner, without the
prior written consent of Xxxxxxxx.
12. SEVERABILITY. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
13. CONTROLLING LAW AND JURISDICTION. The validity, interpretation and
performance of this Agreement shall be subject to and construed under the laws
of the State of Missouri, without regard to principles of conflicts of law.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and terminates
and supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the terms of Executive's employment
or severance arrangements.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above stated.
XXXXXXXX FINANCIAL, INC.
By
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Name:
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Title:
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EXECUTIVE
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Xxxxxx X. Xxxxxxx
