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MAGNA GROUP, INC.
AGREEMENT
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This agreement ("Agreement") has been entered into this
8th day of January, 1998, by and between Magna Group, Inc., a Delaware
corporation ("Company"), and Xxxxxx X. Buerges, an individual ("Executive").
RECITALS
The Board of Directors of the Company (the "Board"), has
determined that it is in the best interests of the Company and its
stockholders to reinforce and encourage the continued attention and
dedication of the Executive to the Company as a member of the Company's
management (including, if applicable, management of a wholly owned
subsidiary) and to assure that the Company will have the continued dedication
of the Executive, notwithstanding the possibility, threat or occurrence of a
Change in Control (as defined below) of the Company. The Board desires to
provide for the continued employment of the Executive on the terms hereof,
and the Executive is willing to commit to continue to serve the Company.
Additionally, the Board believes it is imperative to diminish the inevitable
distraction of the Executive by virtue of the personal uncertainties and
risks created by a pending or threatened Change in Control, to encourage the
Executive's full attention and dedication to the Company currently and in the
event of any threatened or pending Change in Control, and to provide the
Executive with compensation and benefits arrangements upon the breach of this
Agreement by the Employer or upon a termination of employment after a Change
in Control which ensure that the compensation and benefits expectations of
the Executive will be satisfied and which are competitive with those of other
corporations. Therefore, in order to accomplish these objectives, the Board
has caused the Company to enter into this Agreement.
IT IS AGREED AS FOLLOWS:
SECTION 1: DEFINITIONS AND CONSTRUCTION.
1.1 DEFINITIONS. For purposes of this Agreement, the following
words and phrases, whether or not capitalized, shall have the meanings
specified below, unless the context plainly requires a different meaning.
1.1(a) "ANNUAL BASE SALARY" means the dollar amount
approved by the Company Director Compensation
Committee or the Company Chief Executive
Officer.
1.1(b) "BOARD" means the Board of Directors of the
Company.
1.1(c) "CHANGE IN CONTROL" means a change in control
of the Company of a nature that would be
required to be reported in response to Item 6(e)
of Schedule 14A of Regulation 14A promulgated
under the Exchange Act; provided that, for
purposes of this Agreement, a Change in Control
shall be deemed to have occurred if (i) any
Person (other than the Company) is or becomes
the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act),
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directly or indirectly, of securities of the
Company which represent 20% or more of the
combined voting power of the Company's then
outstanding securities; (ii) during any period of
two (2) consecutive years, individuals who at the
beginning of such period constitute the Board
cease for any reason to constitute at least a
majority thereof, unless the election, or the
nomination for election, by the Company's
stockholders, of each new director is approved by
a vote of at least two-thirds (2/3) of the
directors then still in office who were directors
at the beginning of the period but excluding any
individual whose initial assumption of office
occurs as a result of either an actual or
threatened election contest (as such term is used
in Rule 14a-11 of Regulation 14A promulgated under
the Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on
behalf of a person other than the Board; (iii)
there is consummated any consolidation or merger
of the Company in which the Company is not the
continuing or surviving corporation or pursuant to
which shares of the Company's Common Stock is
converted into cash, securities, or other
property, other than a merger of the Company in
which the holders of the Company's Common Stock
immediately prior to the merger have the same
proportionate ownership of common stock of the
surviving corporation immediately after the
merger; (iv) there is consummated any
consolidation or merger of the Company in which
the Company is the continuing or surviving
corporation in which the holders of the
Company's Common Stock immediately prior to the
merger do not own fifty percent (50%) or more of
the stock of the surviving corporation
immediately after the merger; (v) there is
consummated any sale, lease, exchange, or other
transfer (in one transaction or a series of
related transactions) of all, or substantially
all, of the assets of the Company, or (vi) the
stockholders of the Company approve any plan or
proposal for the liquidation or dissolution of
the Company.
1.1(d) "CHANGE IN CONTROL DATE" shall mean the date
of the Change in Control. If a Change in
Control occurs and if the Executive's employment
with the Company is terminated prior to the date
on which the Change in Control occurs, and if it
is reasonably demonstrated by the Executive that
such termination of employment (i) was at the
request of a third party who has taken steps
reasonably calculated to effect a Change in
Control or (ii) otherwise arose in connection
with or anticipation of a Change in Control,
then for all purposes of this Agreement, the
"Change in Control Date" shall mean the date
immediately prior to the date of such
termination of employment, and a Change in
Control shall be deemed to have occurred on the
Change in Control Date.
1.1(e) "CODE" shall mean the Internal Revenue Code of
1986, as amended.
1.1(f) "COMPANY" means Magna Group, Inc., a Delaware
corporation.
1.1(g) "EFFECTIVE DATE" shall mean January 1, 1998.
1.1(h) "EXCHANGE ACT" means the Securities Exchange
Act of 1934, as amended.
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1.1(i) "INCENTIVE BONUS" shall mean the incentive
bonus provided through any incentive
compensation plan, which is generally available
to other peer executives of the Company, awarded
to the Executive for the year preceding
termination. To the extent such incentive bonus
is paid in shares of restricted stock, Incentive
Bonus shall include the value of such shares on
their award date without any discount; provided,
however, such restricted shares shall include
only those awarded in lieu of compensation
payable as determined by the Compensation
Committee of the Board.
1.1(j) "PERSON" means any "person" within the meaning
of Sections 13(d) and 14(d) of the Exchange Act.
1.1(k) "TERM" means the period that begins on the
Effective Date and ends on the earlier of: (i)
the Date of Termination as defined in
Section 3.7, or (ii) the close of business on
December 31 of any calendar year during which
notice is given, by December 1 of such year, by
either party (as provided in Section 7) of such
party's intent not to renew this Agreement.
1.2 GENDER AND NUMBER. When appropriate, pronouns in this
Agreement used in the masculine gender include the feminine gender, words in
the singular include the plural, and words in the plural include the
singular.
1.3 HEADINGS. All headings in this Agreement are included
solely for ease of reference and do not bear on the interpretation of the
text. Accordingly, as used in this Agreement, the terms "Article" and
"Section" mean the text that accompanies the specified Article or Section of
the Agreement.
1.4 APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the state of Missouri, without
reference to its conflict of law principles.
SECTION 2: TERMS AND CONDITIONS OF EMPLOYMENT.
2.1 EMPLOYMENT. If the Executive is in the employ of the
Company (or in the employ of a wholly owned subsidiary) on a Change in
Control Date, then the Executive shall thereafter remain in the employ of the
Company (or in the employ of a wholly owned subsidiary) in accordance with
the terms and provisions of this Agreement.
2.2 POSITIONS AND DUTIES.
2.2(a) Following a Change in Control Date, the
Executive shall continue to serve in the Executive's then current
capacity, subject to the reasonable directions of the Board. 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.
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2.2(b) Following a Change in Control Date and
thereafter throughout the Term of this Agreement (but excluding
any periods of vacation and sick leave to which the Executive is
entitled), the Executive shall devote reasonable attention and
time during normal business hours to the business and affairs of
the Company and shall use the Executive's reasonable best efforts
to perform faithfully and efficiently such responsibilities as are
assigned to the Executive under or in accordance with this
Agreement; provided that, it shall not be a violation of this
paragraph for the Executive to (i) serve on corporate, civic or
charitable boards or committees, (ii) deliver lectures or fulfill
speaking engagements, or (iii) manage personal investments, so
long as such activities do not significantly interfere with the
performance of the Executive's responsibilities as an employee of
the Company in accordance with this Agreement or violate the
Company's conflict of interest policy as in effect immediately
prior to the Effective Date.
2.3 SITUS OF EMPLOYMENT. Following a Change in Control Date and
thereafter throughout the Term of this Agreement, the Executive's services
shall be performed at the location where the Executive was employed
immediately preceding the Change in Control Date.
2.4 COMPENSATION. For any calendar year including and
following a Change in Control Date, the Executive shall receive an Annual
Base Salary equal to the Annual Base Salary being received immediately prior
to a Change in Control Date, which shall be paid in equal or substantially
equal monthly installments. The Annual Base Salary payable to the Executive
shall be reviewed thereafter at least annually but need not be adjusted
upward as a result of such review and shall not be reduced after any increase
thereof.
SECTION 3: TERMINATION OF AGREEMENT.
3.1 DEATH. This Agreement shall terminate automatically upon
the Executive's death during the Term of this Agreement.
3.2 DISABILITY. If, following a Change in Control Date, the
Company determines in good faith that the Disability of the Executive has
occurred during the Term of this Agreement (pursuant to the definition of
Disability set forth below), it may give to the Executive written notice in
accordance with Section 8.1 of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective on the thirtieth (30th) day after receipt of such notice
by the Executive (the "Disability Effective Date"), provided that, within the
thirty (30) days after such receipt, the Executive shall not have returned to
full-time performance of the Executive's duties. For purposes of this
Agreement, "Disability" shall mean that the Executive has been unable to
perform the services required of the Executive hereunder on a full-time basis
for a period of one hundred eighty (180) consecutive business days by reason
of a physical and/or mental condition. "Disability" shall be 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.
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3.4 FOLLOWING A CHANGE IN CONTROL - TERMINATION BY COMPANY FOR
CAUSE. Following a Change in Control Date, the Company may terminate the
Executive's employment during the Term of this Agreement for "Cause," which
shall mean termination based upon: (i) the Executive's willful and continued
failure to substantially perform the Executive's duties with the Company
(other than as a result of incapacity due to physical or mental condition),
after a demand for substantial performance is delivered to the Executive by
the Chief Executive Officer of the Company or the Chairman of the
Compensation Committee of the Board, which specifically identifies the manner
in which the Executive has not substantially performed the Executive's
duties, (ii) the Executive's willful commission of misconduct which is
materially injurious to the Company, monetarily or otherwise, or (iii) the
Executive's material breach of any provision of this Agreement. For purposes
of this paragraph, no act, or failure to act on the Executive's part shall be
considered "willful" unless done, or omitted to be done, without good faith
and without reasonable belief that the act or omission was in the best
interest of the Company. Notwithstanding the foregoing, the Executive shall
not be deemed to have been terminated for Cause unless and until (i) the
Executive receives a Notice of Termination (as defined in Section 3.6) from
the Chief Executive Officer of the Company or the Chairman of the
Compensation Committee of the Board, (ii) the Executive is given the
opportunity, with counsel to be heard before the Board, and (iii) the Board
finds, in its good faith opinion, the Executive was guilty of the conduct set
forth in the Notice of Termination.
3.5 FOLLOWING A CHANGE IN CONTROL - TERMINATION BY EXECUTIVE
FOR GOOD REASON. Following a Change in Control Date, the Executive may
terminate the Executive's employment with the Company for "Good Reason,"
which shall mean termination based upon:
(i) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's position
(including status, offices, titles and reporting requirements),
authority, duties or responsibilities as contemplated by
Section 2.2(a) or any other action by the Company which results in
a material diminution in such position, authority, duties or
responsibilities, excluding for this purpose any action not taken
in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive;
(ii) the failure by the Company to continue in effect any
benefit or compensation plan, stock ownership plan, life insurance
plan, health and accident plan or disability plan to which the
Executive is entitled, the taking of any action by the Company
which would adversely affect the Executive's participation in, or
materially reduce the Executive's benefits such plans, or deprive
the Executive of any material fringe benefit enjoyed by the
Executive or the failure by the Company to provide the Executive
with the number of paid vacation days to which the Executive is
entitled.
(iii) the Company's requiring the Executive to be based at
any office or location other than that described in Section 2.3;
(iv) a material breach by the Company of any provision of
this Agreement;
(v) any failure by the Company to renew this Agreement so
that the Term ends prior to the second anniversary of the Change
in Control Date or any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by
this Agreement;
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(vi) within a period ending at the close of business on
the date two (2) years after the Change in Control Date, any
failure by the Company to comply with and satisfy Section 6.2 on
or after the Change in Control Date; or
(vii) within a period ending at the close of business on
the date one (1) year after the Change in Control Date, the
Executive, in the Executive's sole and absolute discretion,
determines and notifies the Company in writing, that the Executive
does not wish to continue employment with the Company.
For purposes of this Section any good faith determination of "Good Reason"
made by the Executive shall be conclusive.
3.6 NOTICE OF TERMINATION. Any termination by the Company, or
by the Executive, shall be communicated by Notice of Termination to the other
party, given in accordance with Section 8.1. For purposes of this Agreement,
a "Notice of Termination" means a written notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) to the
extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated, and (iii) if the Date of
Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than
fifteen (15) days after the giving of such notice). The failure by the
Executive or the Company to set forth in the Notice of Termination any fact
or circumstance which contributes to a showing of Good Reason or Cause shall
not waive any right of the Executive or the Company hereunder or preclude the
Executive or the Company from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
3.7 DATE OF TERMINATION. "Date of Termination" means (i) if
the Executive's employment is terminated by the Company with or without
Cause, or by the Executive for Good Reason or otherwise, the Date of
Termination shall be the date of receipt of the Notice of Termination or any
later date specified therein, as the case may be, or (ii) if the Executive's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the Disability
Effective Date, as the case may be.
SECTION 4: CERTAIN BENEFITS UPON TERMINATION OF EMPLOYMENT.
4.1 TERMINATION WITHOUT CAUSE PRIOR TO A CHANGE IN CONTROL.
If, prior to a Change in Control, during the Term of this Agreement the
Company shall terminate the Executive's employment without Cause, then on the
tenth (10th) business day following the Date of Termination, the Company
shall pay to the Executive the sum of (1) the Executive's Annual Base Salary
prorated through the Date of Termination to the extent not previously paid,
and (2) any accrued vacation pay to the extent not previously paid.
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:
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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 1/2 (two and one-half) times the sum of the
Executive's Annual Base Salary in effect on the Date of
Termination and the Executive's Incentive Bonus.
4.2(c) "Stock Options": To the extent not otherwise
provided for under the terms of any of the Company's stock option
agreements, all such stock options shall become fully exercisable
as of the Date of Termination and, except for "incentive stock
options" within the meaning of Code Section 422 granted prior to
the date hereof, shall remain fully exercisable in accordance with
their terms.
4.2(d) "Other Benefits": To the extent not previously
paid or provided, the Company shall timely pay or provide to the
Executive and/or the Executive's family any other amounts or
benefits required to be paid or provided for which the Executive
and/or the Executive's family is eligible to receive pursuant to
this Agreement and under any plan, program, policy or practice or
contract or agreement of the Company as those provided generally
to other peer executives and their families during the ninety (90)
day period immediately preceding the Effective Date or, if more
favorable to the Executive, as those provided generally after the
Effective Date to other peer executives of the Company and their
families.
4.2(e) "Excess Parachute Payment": Anything in this
Agreement to the contrary notwithstanding, in the event that an
independent accountant shall determine that any payment or
distribution by the Company to or for the benefit of Executive
(whether paid or payable or distributed or distributable pursuant
to the terms of this Agreement or otherwise) (a "Payment") would
be nondeductible by the Company for Federal income tax purposes
because of Code Section 280G or would constitute an "excess
parachute payment" (as defined in Code Section 280G), then the
aggregate present value of amounts payable or distributable to or
for the benefit of Executive pursuant to this Agreement (such
payments or distributions pursuant to this Agreement are
hereinafter referred to as "Agreement Payments") shall be reduced
(but not below zero) to the Reduced Amount. For purposes of this
paragraph, the "Reduced Amount" shall be an amount expressed in
present value which maximizes the aggregate present value of
Agreement Payments without causing any Payment to be nondeductible
by the Company because of Code Section 280G or without causing any
portion of the Payment to be subject to the excise tax imposed by
Code Section 4999.
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
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and how much of the Agreement Payments shall be eliminated or
reduced (as long as after such election the aggregate present value
of the Agreement Payments equals the Reduced Amount), and shall
advise the Company in writing of the Executive's election within ten
(10) days of the Executive's receipt of such notice. If no such
election is made by Executive within such ten-day period, the
Company may elect which and how much of the Agreement Payments
shall be eliminated or reduced (as long as after such election the
aggregate present value of the Agreement Payments equals the
Reduced Amount) and shall notify the Executive promptly of such
election. For purposes of this paragraph, present value shall be
determined in accordance with Code Section 280G(d)(4). All
determinations made by the independent accountant under this
paragraph shall be binding upon the Company and the Executive and
shall be made within sixty (60) days of a termination of
employment of the Executive. As promptly as practicable following
such determination and the elections hereunder, the Company shall
pay to or distribute to or for the benefit of the Executive such
amounts as are then due to the Executive under this Agreement and
shall promptly pay to or distribute for the benefit of the
Executive in the future such amounts as become due to the
Executive under this Agreement.
As a result of the uncertainty in the application of Code
Sections 280G and 4999 at the time of the initial determination by
the independent accountant hereunder, it is possible that
Agreements Payments will be made by the Company which should not
have been made ("Overpayment") or that additional Agreement
Payments which have not been made by the Company should have been
made ("Underpayment"), in each case, consistent with the
calculation of the Reduced Amount hereunder. In the event that
the independent accountant, based upon the assertion of a
deficiency by the Internal Revenue Service against the Company or
the Executive which the independent accountant believes has a high
probability of success, determines that an Overpayment has been
made, any such Overpayment shall be treated for all purposes as a
loan to the Executive which the Executive shall repay to the
Company together with interest at the applicable Federal rate
provided for in Code Section 7872(f)(2); provided, however, that
no amount shall be payable by the Executive to the Company if and
to the extent such payment would not reduce the amount which is
subject to taxation under Code Section 4999 or if the period of
limitations for assessment of tax under Code Section 4999 against
the Executive shall have expired. If the Executive is required to
repay an amount under this Section, the Executive shall repay such
amount over a period of time not to exceed one (1) year for each
twenty-five thousand dollars ($25,000) which the Executive must
repay to the Company. In the event that the independent
accountant, based upon controlling precedent, determines that an
Underpayment has occurred, any such Underpayment shall be promptly
paid by the Company to or for the benefit of the Executive
together with interest at the applicable Federal rate provided for
in Code Section 7872(f)(2)(A).
4.3 DEATH. If the Executive's employment is terminated by
reason of the Executive's death during the Term of this Agreement (either
prior or subsequent to a Change in Control), this Agreement shall terminate
without further obligations to the Executive's legal representatives under
this Agreement, 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).
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4.4 DISABILITY. If the Executive's employment is terminated by
reason of the Executive's Disability during the Term of this Agreement
(either prior or subsequent to a Change in Control), this Agreement shall
terminate without further obligations to the Executive, other than for
payment of Accrued Obligations (as defined in Section 4.1) (which shall be
paid to the Executive in a lump sum in cash within ten (10) days of the Date
of Termination).
4.5 TERMINATION FOR CAUSE; EXECUTIVE'S TERMINATION OTHER THAN
FOR GOOD REASON AFTER A CHANGE IN CONTROL. If the Executive's employment
shall be terminated for Cause during the Term of this Agreement (either prior
to or subsequent to a Change in Control), this Agreement shall terminate
without further obligations to the Executive other than the obligation to pay
to the Executive Accrued Obligations (as defined in Section 4.1). If the
Executive terminates employment with the Company during the Term of this
Agreement, (other than for Good Reason after a Change in Control) this
Agreement shall terminate without further obligations to the Executive, other
than for Accrued Obligations (as defined in Section 4.1). In such case, all
Accrued Obligations shall be paid to the Executive in a lump sum cash payment
within thirty (30) days of the Date of Termination. If the Executive's
employment shall terminate for the reasons stated in this Section, the
provisions of Section 5 shall continue to apply.
4.6 NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
plan, program, policy or practice provided by the Company and for which the
Executive may qualify, nor shall anything herein limit or otherwise affect
such rights as the Executive may have under any contract or agreement with
the Company. Amounts which are vested benefits of which the Executive is
otherwise entitled to receive under any plan, policy, practice or program of,
or any contract or agreement with, the Company at or subsequent to the Date
of Termination, shall be payable in accordance with such plan, policy,
practice or program or contract or agreement except as explicitly modified by
this Agreement.
4.7 FULL SETTLEMENT. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may
have against the Executive or others. In no event shall the Executive be
obligated to seek other employment or take any other action by way of
mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement and such amounts shall not be reduced whether or
not the Executive obtains other employment. The Company agrees, only on and
after a Change in Control Date to pay promptly as incurred, to the full
extent permitted by law, all legal fees and expenses which the Executive may
reasonable incur as a result of any contest (regardless of the outcome
thereof) by the Company, the Executive or others of the validity or
enforceability of, or liability under, any provision of this Agreement or any
guarantee of performance thereof (including as a result of any contest by the
Executive regarding the amount of any payment pursuant to this Agreement),
plus in each case interest on any delayed payment at the applicable Federal
rate provided for in Code Section 7872(f)(2)(A).
4.8 RESOLUTION OF DISPUTES. If there shall be any dispute
between the Company and the Executive (i) in the event of any termination of
the Executive's employment by the Company, whether such termination was for
Cause, or (ii) in the event of any termination of employment by the
Executive, 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
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Executive's family or other beneficiaries, as the case may be, that the Company
would be required to pay or provide pursuant to Section 4.2 as though such
termination were by the Company without Cause or by the Executive with Good
Reason; provided, however, that the Company shall not be required to pay any
disputed amounts pursuant to this paragraph except upon receipt of an
undertaking by or on behalf of the Executive to repay all such amounts to which
the Executive is ultimately adjudged by such court not to be entitled.
SECTION 5: CONFIDENTIAL INFORMATION.
CONFIDENTIAL INFORMATION. The Executive shall hold in a
fiduciary capacity for the benefit of the Company all secret or confidential
information, knowledge or data relating to the Company or any of its
affiliated companies, and their respective businesses, which shall have been
obtained by the Executive during the Executive's employment by the Company
and which shall not be or become public knowledge (other than by acts by the
Executive or representatives of the Executive in violation of this
Agreement). After termination of the Executive's employment with the
Company, the Executive shall not, without the prior written consent of the
Company, or as may otherwise be required by law or legal process, communicate
or divulge any such information, knowledge or data to anyone other than the
Company and those designated by it. In no event shall an asserted violation
of the provisions of this Section constitute a basis for deferring or
withholding any amounts otherwise payable to the Executive under this
Agreement.
SECTION 6: SUCCESSORS.
6.1 SUCCESSORS OF EXECUTIVE. This Agreement is personal to the
Executive and, without the prior written consent of the Company, amounts
receivable hereunder shall not be assignable by the Executive otherwise than
by will or the laws of descent and distribution. This Agreement shall inure
to the benefit of and be enforceable by the Executive's legal
representatives.
6.2 SUCCESSORS OF COMPANY. The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform
it if no such succession had taken place. Failure of the Company to obtain
such agreement upon the effectiveness of any such succession shall be a
breach of this Agreement and shall entitle the Executive to terminate the
Agreement at the Executive's option on or after the Change in Control Date
for Good Reason. As used in this Agreement, "Company" shall mean the Company
as hereinbefore defined and any successor to its business and/or assets which
assumes and agrees to perform this Agreement by operation of law, or
otherwise.
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
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Agreement. If notice is given by either party after December 1 of any year, but
prior to January 1 of the next succeeding year, then the last renewal period
shall be the twelve (12) month period which begins on the January 1 following
the date notice is given and ending the following December 31. Notwithstanding
the foregoing, in the event a Change in Control shall have occurred, this
Agreement shall terminate two (2) years after a Change in Control Date.
SECTION 8: MISCELLANEOUS.
8.1 NOTICE. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses as set forth below; provided that all notices to the
Company shall be directed to the attention of the Chairman of the Board of
the Company with a copy to the Secretary of the Company, or to such other
address as one party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be effective only
upon receipt.
Notice to Executive:
-------------------
Xxxxxx X. Buerges
00 Xxx Xxxx Xxxxx, #00
Xxxxxxxxxx, XX 00000
Notice to Company:
-----------------
Magna Group, Inc.
0000 Xxxxx Xxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
8.2 VALIDITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement.
8.3 WITHHOLDING. The Company may withhold from any amounts
payable under this Agreement such Federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
8.4 WAIVER. The Executive's or the Company's failure to insist
upon strict compliance with any provision hereof or any other provision of
this Agreement or the failure to assert any right the Executive or the
Company may have hereunder, including, without limitation, the right of the
Executive to terminate employment for Good Reason pursuant to Section 3.5
shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.
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.
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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.
/s/ Xxxxxx X. Buerges
---------------------------------------------
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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