EXHIBIT 10.9
ALLEGIANT BANCORP, INC.
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EXECUTIVE RETENTION AGREEMENT
This Executive Retention Agreement (this "Agreement") has been
entered into as of the 1st day of January, 2002, by and between Allegiant
Bancorp, Inc., a Missouri corporation (the "Company"), and ________________,
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 shareholders 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 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
shareholders, 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 shareholders 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 shareholders 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 January 1,
2002.
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. 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 or reason
by giving notice to the other party. The Executive's employment shall
terminate automatically upon the Executive's death.
2.2 TERMINATION OF EMPLOYMENT PRIOR TO A CHANGE OF
CONTROL. 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.
2.3 TERMINATION OF EMPLOYMENT AFTER A CHANGE IN CONTROL.
After a Change in Control, the following provisions shall apply.
2.3(a) DEATH. The Executive's employment shall
terminate automatically upon the Executive's death.
2.3(b) 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.
2.3(c) 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 DISABILITY), 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
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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 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 2.4) 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.
2.3(d) GOOD REASON. After a Change In Control,
the Executive may voluntarily 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;
or
(v) A material breach by the Company of
any provision of this Agreement.
For purposes of this Section any good faith determination
of "Good Reason" made by the Executive shall be
conclusive.
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2.3(e) TERMINATION WITHOUT CAUSE AFTER A CHANGE
IN CONTROL. After a Change in Control, the Company and
Executive shall continue to have the right to terminate
Executive's employment without Cause and for any or no
reason, and nothing in this Agreement shall be construed
as limiting the Company's or Executive's right to
terminate Executive's employment at any time without Cause
and for any or no reason.
2.4 NOTICE OF TERMINATION. Any termination of the
Executive's employment with the Company (other than for death) by the
Company or by the Executive, 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 2.3(b)). 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.
2.5 DATE OF TERMINATION. "Date of Termination" means the
effective date of termination of Executive's employment with the Company,
determined as follows: (i) if the Executive's employment is terminated after
a Change of Control 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, (iii) if
after a Change of Control the Executive's employment is terminated by the
Company other than for Cause, death, or Disability, or by the Executive
without Good Reason, the Date of Termination shall be the date of receipt of
the Notice of Termination, or (iv) if the Executive's employment is
terminated by the Company or Executive prior to a Change in Control other
than for Executive's 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 reason for the termination, solely for the purpose of
determining the timing of any payment calculated from the Date of
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, and such termination is not due to Executive's death or
Disability, then:
3.1(a) "Accrued Obligations": Within 30 days
after the Date of Termination, the Company shall pay to
the Executive the sum of (1) the Executive's Annual Base
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Salary through the Date of Termination to the extent not
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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.
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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 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.
3.1(c) "Severance Amount": Company may, at its
option, waive the provisions of Section 4.1 hereof, in
which event, Executive shall not be entitled to any amount
in addition to that described in 3.1(a) and 3.1 (b). If
Employer elects not to waive the provisions of Section
4.1, within thirty (30) days after the Date of Termination
and subject to satisfaction of the provisions of Section
3.9 and subject to the provisions of Section 3.5, Company
shall begin paying to Executive twelve (12) monthly
installments which together equal the Employee's Annual
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Base Salary. Payments shall be made in accordance with the
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payroll practice of Company but no less frequently than
once a month, as such amount may be reduced pursuant to
the provisions of Section 3.5. Executive's right to
receive the Severance Amount under this Section 3.1(c) is
conditioned on Executive's compliance with Section 4.1.
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, Company shall pay to Employee a lump sum cash
amount or monthly installments, as Employee chooses, equal
to the product of 2.25 times the Employee's Highest Annual
Compensation. For purposes of this subparagraph, "Highest
Annual Compensation" shall mean the highest total annual
compensation (salary and incentive) paid by the Company to
the Employee in any one of the three most recent completed
calendar years preceding the Date of Termination. If
Employee chooses to receive this payment in a lump sum,
this amount shall be paid within 30 days after the
effective date of involuntary termination or Diminution of
Status; as such amount may be reduced pursuant to the
provisions of Section 3.5. If Employee chooses to receive
this payment in a series of equal monthly installments
over a one and one-half year period, payments shall be
made in accordance with the payroll practice of Company
but no less frequently than once a month; as such amount
may be reduced pursuant to the provisions of Section 3.5.
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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) "Health Insurance": For the period of
thirty (30) months commencing on the Date of Termination,
the Company shall provide, at its expense, to the
Executive and Executive's eligible family members full
coverage under the Company's Health Insurance Plan (or its
full equivalent) and the Company's Dental Insurance Plan
(or its full equivalent).
3.2(e) "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 (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
3.1(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.
If the Executive's employment is terminated by
reason of the Executive's Disability (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 3.1(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(b))
including disability benefits pursuant to the terms of any plan, policy or
arrangement of the Company.
3.4 TERMINATION AFTER A CHANGE OF CONTROL FOR CAUSE; OTHER
THAN GOOD REASON. If the Executive's employment shall be terminated for
Cause 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 Obligations (as defined in
Section 3.1(a)). If the Executive terminates employment with the Company
other than for Good Reason and subsequent to a Change of Control, if the
Executive terminates employment with the Company for Good Reason more than
three (3) years after a Change of Control, or if the Company terminates the
Executive without Cause more than three (3) years after a Change of Control,
this Agreement shall terminate without further obligations to the Executive,
other than for the payment of Accrued Obligations (as defined in Section
3.1(a)) and the timely payment or provision of Other Benefits (as defined in
Section 3.1(b)). In such case, all Accrued Obligations shall be paid to the
Executive in a lump sum in cash within thirty (30) days of the Date of
Termination.
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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 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
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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 Disability, 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 3.1(c) or 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 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 (i) in the case where a Change of Control has
occurred, on the Change in Control Date, and (ii) in all
other cases, 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,
manager, member or director of any business enterprise in
substantial direct competition (as defined in Section
4.1(b)) with the Company.
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4.1(b) For purposes of Section 4.1, a business
enterprise 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.
4.3 REMEDIES. In addition to any other remedies available
to the Company at law or in equity, the Executive's failure to comply with
the provisions of this Section 4 shall give the Company the right (in
addition to all other remedies the Company may have) to terminate any
benefits or compensation to which the Executive may be otherwise entitled
following termination of his employment hereunder. The Executive represents
that due to his education and qualifications and the significant
consideration which he will receive pursuant to this Agreement, his ability
to earn a livelihood would not be impaired if Company is granted equitable
relief to enforce the obligations set forth in Section 4 of this Agreement.
The parties acknowledge that any breach of this Section 4 by Executive will
cause irreparable harm to the Company. As a consequence, the parties agree
that if the Executive fails to abide by the terms of Section 4 of this
Agreement, the Company will be entitled to specific performance, including
immediate issuance of a temporary restraining order or preliminary
injunction enforcing this Agreement, and to judgment for damages caused by
such breach, and to any and all other remedies provided by equity or
applicable law.
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 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
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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 Chief
Executive Officer, 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:
-------------------
------------------------
------------------------
------------------------
Notice to Company:
-----------------
Allegiant Bancorp, Inc.
0000 Xxxxxxx Xxxx.
Xx. Xxxxx, XX 00000
Attn: Chief Executive Officer
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. If any provision of Section 4, or
any part thereof, is held to be unenforceable, the court making such
determination shall have the power to modify such provisions so that the
restriction imposed thereby is no greater than what would otherwise be
permissible under the applicable law.
6.3 WITHHOLDING; ATTORNEYS FEES. 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 employment for Good Reason pursuant to Section
3.2(ii), 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
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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.
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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: February , 2002
-- -----------------------------------
-------------------
ALLEGIANT BANCORP, INC.
By
--------------------------------
Name:
------------------------------
Date: February , 2002 Title:
-- -----------------------------
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