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EXHIBIT 10.4
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EMPLOYMENT AGREEMENT
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AGREEMENT by and between Mercantile Bancorporation Inc., a
Missouri corporation (the "Company") and Xxxx X. Xxxxxxxx (the
"Executive"), dated as of the 27th day of October, 1996.
The Executive Committee of the Board of Directors of the
Company (the "Company Board") has determined that it is in the
best interests of the Company and its shareholders to assure that
the Company will have the dedication of the Executive pending the
merger of Xxxx Xxxxx Bancshares, Inc. ("Xxxx Xxxxx") and the
Company (the "Merger") pursuant to the Agreement and Plan of
Merger dated as of October 27, 1996, and to provide the surviving
corporation after the Merger with continuity of management.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Effective Date. The "Effective Date" shall mean the
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date on which the Effective Time of the Merger (as defined in the
Merger Agreement) occurs, provided that the Effective Time occurs
on or before December 31, 1997, or such later date as may be
mutually agreed upon by the Company and Xxxx Xxxxx.
2. Employment Period. The Company hereby agrees to
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continue the Executive in its employ, and the Executive hereby
agrees to remain in the employ of the Company subject to the
terms and conditions of this Agreement, for the period commencing
on the Effective Date and ending on the second anniversary of
such date (the "Employment Period").
3. Terms of Employment. (a) Position and Duties. (i)
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During the Employment Period, (A) the Executive shall serve as
President and Chief Executive Officer of the Company's St. Louis
banking affiliate ("Bank") and as a member of the Company's
Management Executive Committee and (B) the Executive's services
shall be performed in St. Louis, Missouri.
(ii) During the Employment Period, and excluding
any periods of vacation and sick leave to which the Executive is
entitled, the Executive agrees to devote reasonable attention and
time during normal business hours to the business and affairs of
Bank and to use the Executive's reasonable best efforts to
perform faithfully and efficiently such responsibilities. The
Executive will be the officer responsible for retail and
commercial banking activities in the metropolitan St. Louis
market and shall report directly to the Chairman and Chief
Executive Officer of the Company.
(b) Compensation. (i) Base Salary. During the
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Employment Period, the Executive shall receive an annual base
salary ("Annual Base Salary"), which shall be paid at an annual
rate of 105% of the Executive's annual base salary as of the date
hereof. During the Employment Period, the Annual Base Salary
shall be reviewed annually in accordance with the Company's
customary practice and adjusted in accordance with the base salary
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adjustment, if any, of other peer executives of the Company. Any increase in
Annual Base Salary shall not serve to limit or reduce any other obligation to
the Executive under this Agreement. Annual Base Salary shall not be reduced
after any such increase and the term Annual Base Salary as utilized in this
Agreement shall refer to Annual Base Salary as so increased. As
used in this Agreement, the term "affiliated companies" shall
include any company controlled by, controlling or under common
control with the Company.
(ii) Annual Bonus. During the Employment Period,
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in addition to Annual Base Salary, the Executive will be eligible
to receive, (I) for each fiscal year of the Company during which
the Executive is employed, an annual bonus (the "Annual Bonus")
in an amount to be determined by the Company Board of Directors,
but in no event shall the amount of the Annual Bonus during the
first fiscal year during which the Executive is employed (the
"First Fiscal Year") be less than the product of (x) .55 and (y)
the Annual Base Salary (the "Minimum Bonus") and (II) for that
portion of any fiscal year of the Company other than the First
Fiscal Year during which the Executive is employed for less than
twelve full months, an amount equal to the product of (x) the
greater of (A) the Minimum Bonus and (B) any other Annual Bonus
paid to the Executive during the Employment Period, and (y) a
fraction, the numerator of which is the number of days in such
fiscal year during which the Executive is employed by the
Company, and the denominator of which is 365. Each such Annual
Bonus shall be paid in cash in a manner and at a time in
accordance with the Company's customary practices with respect to
other peer executives of the Company, but not later than January
31st of the year following the year to which such Annual Bonus
relates.
(iii) Incentive, Savings and Retirement Plans.
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During the Employment Period, the Executive shall be entitled to
participate in all incentive, savings and retirement plans,
practices, policies and programs applicable generally to other
peer executives of the Company and its affiliated companies.
(iv) Welfare Benefit Plans. During the
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Employment Period, the Executive and/or the Executive's family,
as the case may be, shall be eligible for participation in and
shall receive all benefits under welfare benefit plans,
practices, policies and programs provided by the Company and its
affiliated companies (including, without limitation, medical,
prescription, dental, disability, employee life, group life,
accidental death and travel accident insurance plans and
programs) to the extent applicable generally to other peer
executives of the Company and its affiliated companies.
(v) Expenses. During the Employment Period, the
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Executive shall be entitled to receive prompt reimbursement for
all reasonable expenses incurred by the Executive in accordance
with the Company's policies.
(vi) Fringe Benefits. During the Employment
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Period, the Executive shall be entitled to fringe benefits on a
basis no less favorable than that applicable to other peer
executives of the Company and its affiliated companies, and also,
to the extent that the
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Executive receives such fringe benefits as of the date hereof, payment of club
dues and use of an automobile and payment of related expenses.
(vii) Office and Support Staff. During the
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Employment Period, the Executive shall be entitled to an office
or offices of a size and with furnishings and other appointments,
and to personal secretarial and other assistance, as provided
generally to other peer executives of the Company and its
affiliated companies.
(viii) Vacation. During the Employment Period,
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the Executive shall be entitled to paid vacation in accordance
with the plans, policies, programs and practices of the Company
and its affiliated companies on the basis no less favorable than
that applicable to other peer executives of the Company and its
affiliated companies.
4. Termination of Employment. (a) Death or Disability.
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The Executive's employment shall terminate automatically upon the
Executive's death during the Employment Period. If the Company
determines in good faith that the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition
of Disability set forth below), it may give to the Executive
written notice in accordance with Section 12(b) of this Agreement
of its intention to terminate the Executive's employment. In
such event, the Executive's employment with the Company shall
terminate effective on the 30th day after receipt of such notice
by the Executive (the "Disability Effective Date"), provided
that, within the 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
the absence of the Executive from the Executive's duties with the
Company or Bank on a full-time basis for 180 consecutive business
days as a result of incapacity due to mental or physical illness
which is determined to be total and permanent by a physician
selected by the Company or its insurers and acceptable to the
Executive or the Executive's legal representative.
(b) Cause. The Company or Bank may terminate the
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Executive's employment during the Employment Period for Cause.
For purposes of this Agreement, "Cause" shall mean:
(i) The Executive's willful and continued failure
to substantially perform his duties (other than as a result of
incapacity due to physical or mental condition), after a written
demand for performance is delivered to the Executive which
specifically identifies the manner in which the Executive has not
substantially performed his duties; or
(ii) The Executive's willful commission or
misconduct which is materially injurious to the Company and/or
Bank, monetarily or otherwise; or
(iii) Conviction of the Executive of a felony; or
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(iv) A determination by the Company or Bank that
the Executive has committed fraud, embezzlement, theft, or
misappropriation against or from the Company or Bank; or
(v) The Executive's material breach of any
provision of this Agreement, including any breach of Section 10.
For purposes of this Section, no act or failure to act shall be
considered "willful" unless done or omitted to be done without
good faith and without a reasonable belief that the act or
omission was in the best interest of the Company and/or Bank.
(c) Good Reason. The Executive's employment may be
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terminated by the Executive for Good Reason. For purposes of
this Agreement, "Good Reason" shall mean a termination by the
Executive following a material breach of this Agreement by the
Company that is not cured after reasonable notice of such breach.
Anything in this Agreement to the contrary notwithstanding, a
termination by the Executive of his employment for any reason or
no reason during the 30-day period immediately following the
thirteenth (13th) month anniversary of the Effective Date shall
be deemed to be a termination for Good Reason for all purposes of
this Agreement.
(d) Notice of Termination. Any termination by the
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Company or Bank for Cause, or by the Executive for Good Reason,
shall be communicated by Notice of Termination to the other party
hereto given in accordance with Section 12(b) of this Agreement.
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 thirty days after the giving
of such notice). The failure by the Executive, the Company or
Bank 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, the Company or
Bank, respectively, hereunder or preclude the Executive, the
Company or Bank, respectively, from asserting such fact or
circumstance in enforcing the Executive's, the Company's or
Bank's rights hereunder.
(e) Date of Termination. "Date of Termination" means
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(i) if the Executive's employment is terminated by the Company or
Bank for Cause, or by the Executive for Good Reason, 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 the Company or Bank other than for Cause or
Disability, the Date of Termination shall be the date on which
the Company or Bank notifies the Executive of such termination
and (iii) 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.
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5. Obligations of the Company upon Termination. (a) Good
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Reason; Other Than for Cause, Death or Disability. If, during
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the Employment Period, (I) the Company or Bank shall terminate
the Executive's employment other than for Cause, Death or
Disability or (II) the Executive shall terminate employment for
Good Reason:
(i) the Company shall pay to the Executive the
aggregate of the following amounts:
A. The Executive's Annual Base Salary through the
Date of Termination to the extent not theretofore paid ("Accrued
Salary"), provided that if the employment of the Executive is
terminated without Cause or for Good Reason before the fourteenth
(14th) month anniversary date of the Effective Date, the Date of
Termination shall be deemed to be said fourteenth (14th) month
anniversary date and the Accrued Bonus (as defined in paragraph
5(b)) shall be added to and be deemed a part of the Annual Base
Salary; and
B. $1.2 million, payable in 24 equal monthly
installments (the "Termination Payment") (which is approximately
the amount that would be owed to the Executive as a termination
payment under the existing employment arrangements with Xxxx
Xxxxx).
(ii) For the greater of (1) twelve months or (2)
the number of months remaining in the Employment Period on the
Date of Termination, or such longer period as may be provided by
the terms of the appropriate plan, program, practice or policy
(the "Benefit Continuation Period"), the Company shall after the
Executive's Date of Termination continue benefits to the
Executive and/or the Executive's family at least equal to those
which would have been provided to them in accordance with the
plans, programs, practices and policies described in Section
3(b)(iv) of this Agreement if the Executive's employment had not
been terminated or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other
peer executives of the Company and its affiliated companies and
their families, provided, however, that if the Executive becomes
reemployed with another employer and is eligible to receive
medical or other welfare benefits under another employer provided
plan, the medical and other welfare benefits described herein
shall be secondary to those provided under such other plan during
such applicable period of eligibility. For purposes of
determining eligibility (but not the time of commencement of
benefits) of the Executive for retiree benefits pursuant to such
plans, practices, programs and policies, the Executive shall be
considered to have remained employed during the Benefit
Continuation Period and to have retired an the last day of such
period;
(iii) To the extent not theretofore paid or
provided, the Company shall timely pay or provide to the
Executive any other amounts or benefits required to be paid or
provided or which the Executive is eligible to receive under any
plan, program, policy or practice or contract or agreement of the
Company and its affiliated companies (such other amounts and
benefits shall be hereinafter referred to as the "Other
Benefits").
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(b) Death. If the Executive's employment is
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terminated by reason of the Executive's death during the
Employment Period, this Agreement shall terminate without further
obligations to the Executive's legal representatives under this
Agreement, other than for payment of Accrued Salary and the
Termination Payment (if not previously paid), an amount equal to
the product of (x) the Annual Bonus paid or payable, including
any bonus or portion thereof which has been earned but deferred
(and annualized for any fiscal year of the Company consisting of
less than twelve full months or during which the Executive was
employed for less than twelve full months), for the most recently
completed fiscal year during the Employment Period, if any, or,
in the event that a fiscal year of the Company has not been
completed during the Employment Period as of the Date of
Termination, the Minimum Bonus, and (y) a fraction, the numerator
of which is the number of days in the current fiscal year of the
Company through the Date of Termination, and the denominator, of
which is 365 (the "Accrued Bonus") and the timely payment or
provision of Other Benefits. The Accrued Salary, the Termination
Payment and Accrued Bonus shall be paid to the Executive's estate
or beneficiary, as applicable, in a lump sum in cash within 30
days of the Date of Termination. With respect to the provision
of Other Benefits, the term Other Benefits as utilized in this
Section 5(b) shall include, without limitation, and the
Executive's estate and/or beneficiaries shall be entitled to
receive, benefits at least equal to the most favorable benefits
provided by the Company and affiliated companies to the estates
and beneficiaries of peer executives of the Company and such
affiliated companies under such plans, programs, practices and
policies relating to death benefits, if any, as in effect with
respect to other peer executives and their beneficiaries at any
time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive's estate
and/or the Executive's beneficiaries, as in effect on the date of
the Executive's death with respect to other peer executives of
the Company and its affiliated companies and their beneficiaries.
(c) Disability. If the Executive's employment is
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terminated by reason of the Executive's Disability during the
Employment Period, this Agreement shall terminate without further
obligations to the Executive, other than for payment of Accrued
Salary, the Termination Payment (if not previously paid), Accrued
Bonus, and the timely payment or provision of Other Benefits. The
Accrued Salary, the Termination Payment and the Accrued Bonus
shall be paid to the Executive in a lump sum in cash within 30
days of the Date of Termination. With respect to the provision of
Other Benefits, the term Other Benefits as utilized in this
Section 5(c) shall include, and the Executive shall be entitled
after the Disability Effective Date to receive, disability and
other benefits in accordance with such plans, programs, practices
and policies relating to disability, if any, as in effect
generally with respect to other peer executives of the Company
and its affiliated companies and their families.
(d) Cause; Other than for Good Reason. If the
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Executive's employment shall be terminated for Cause or by the
Executive other than for Good Reason during the Employment
Period, this Agreement shall terminate without further
obligations to the
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Executive other than the obligation to pay to the Executive his Accrued Salary
and Other Benefits, in each case to the extent theretofore unpaid.
6. Non-exclusivity of Rights. Nothing in this Agreement
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shall prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice provided
by the Company or any of its affiliated companies 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 or any of its affiliated
companies. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan,
policy, practice or program of or any contract or agreement with
the Company or any of its affiliated companies 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.
7. Full Settlement. The Company's obligation to make the
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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
to pay as incurred, to the full extent permitted by law, all
legal fees and expenses which the Executive may reasonably 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 about 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 Section 7872(f)(2)(A) of the Internal Revenue Code of
1986, as amended (the "Code").
8. Certain Reduction of Payments by the Company. (a) For
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purposes of this Section 8, (i) a "Payment" shall mean any
payment or distribution in the nature of compensation to or for
the benefit of the Executive, whether paid or payable pursuant to
this Agreement or otherwise; (ii) "Separation Payment" shall mean
a Payment paid or payable pursuant to this Agreement
(disregarding this Section); (iii) "Net After Tax Receipt" shall
mean the Present Value of a Payment net of all taxes imposed on
the Executive with respect thereto under Sections 1 and 4999 of
the Internal Revenue Code of 1986, as amended (the "Code"),
determined by applying the highest marginal rate under Section 1
of the Code which applied to the Executive's taxable income for
the immediately preceding taxable year; (iv) "Present Value"
shall mean such value determined in accordance with Section
280G(d)(4) of the Code; and (v) "Reduced Amount" shall mean the
greatest aggregate amount of Separation Payments which (a) is
less than the sum of all Separation Payments and (b) results in
aggregate Net After Tax Receipts which are equal to or greater
than the Net After Tax Receipts which would result if the
Executive were paid the sum of all Separation Payments.
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(b) Anything in this Agreement to the contrary
notwithstanding, in the event KPMG Peat Marwick LLP or such other
nationally recognized certified public accounting firm designated
by the Executive (the "Accounting Firm") shall determine that
receipt of all Payments would subject the Executive to tax under
Section 4999 of the Code, it shall determine whether some amount
of Separation Payments would meet the definition of a "Reduced
Amount." If the Accounting Firm determines that there is a
Reduced Amount, the aggregate Separation Payments shall be
reduced to such Reduced Amount. All fees payable to the
Accounting Firm shall be paid solely by the Company.
(c) If the Accounting Firm determines that aggregate
Separation Payments should be reduced to the Reduced Amount, the
Company shall promptly give the Executive notice to that effect
and a copy of the detailed calculation thereof, and the Executive
may then elect, in his sole discretion, which and how much of the
Separation Payments shall be eliminated or reduced (as long as
after such election the present value of the aggregate Separation
Payments equals the Reduced Amount), and shall advise the Company
in writing of his election within ten days of his receipt of
notice. If no such election is made by the Executive within such
ten-day period, the Company may elect which of such Separation
Payments shall be eliminated or reduced (as long as after such
election the present value of the aggregate Separation Payments
equals the Reduced Amount) and shall notify the Executive
promptly of such election. All determinations made by the
Accounting Firm under this Section shall be binding upon the
Company and the Executive and shall be made within 60 days of a
termination of employment of the Executive. As promptly as
practicable following such determination, the Company shall pay
to or distribute for the benefit of the Executive such Separation
Payments 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 Separation Payments as become due to
the Executive under this Agreement.
(d) While it is the intention of the Company to reduce
the amounts payable or distributable to the Executive hereunder
only if the aggregate Net After Tax Receipts to an Executive
would thereby be increased, as a result of the uncertainty in the
application of Section 4999 of the Code at the time of the
initial determination by the Accounting Firm hereunder, it is
possible that amounts will have been paid or distributed by the
Company to or for the benefit of the Executive pursuant to this
Agreement which should not have been so paid or distributed
("Overpayment") or that additional amounts which will have not
been paid or distributed by the Company to or for the benefit of
the Executive pursuant to this Agreement could have been so paid
or distributed ("Underpayment"), in each case, consistent with
the calculation of the Reduced Amount hereunder. In the event
that the Accounting Firm, based upon the assertion of a
deficiency by the Internal Revenue Service against the Company or
the Executive which deficiency the Accounting Firm believes has a
high probability of success, determines that an Overpayment has
been made, any such Overpayment paid or distributed by the
Company to or for the benefit of the Executive 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 Section 7872(f)(2) of the
Code; provided, however, that no such loan shall be deemed to
have been
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made and no amount shall be payable by the Executive to the
Company if and to the extent such deemed loan and payment
would not either reduce the amount on which the Executive is
subject to tax under Section 1 and Section 4999 of the Code or
generate a refund of such taxes. In the event that the
Accounting Firm, based upon controlling precedent or substantial
authority, 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 Section 7872(f)(2) of the Code.
9. Confidential Information. The Executive shall hold in a
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fiduciary capacity for the benefit of the Company and Bank all
secret or confidential information, knowledge or data relating to
the Company or Bank or any of their affiliated companies, and
their respective businesses, which shall have been obtained by
the Executive during the Executive's employment by the Company or
any of its affiliated companies 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, 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 9
constitute a basis for deferring or withholding any amounts
otherwise payable to the Executive under this Agreement.
10. Covenant Not To Engage in Competitive or Other
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Detrimental Activities. (a) The Executive covenants that from
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and after the Effective Date he will not compete with the
Company, Bank and/or their affiliates and further covenants that
he will not take any action which is detrimental to the Company,
Bank and/or their affiliates (i) during the Employment Period,
and (ii) if the Executive's employment terminates for any reason
(other than the Executive's death) or no reason during the
Employment Period, for an additional three (3) year period of
time beginning on the Date of Termination.
(b) For purposes of paragraph (a) of this Section 10,
the Executive shall be deemed to be competing with the Company,
Bank and/or their affiliates at any time if the Executive accepts
employment with, or serves as an agent, employee, or director of,
or a consultant to, a competitor of the Company, Bank and/or
their affiliates, or during such time the Executive acquires or
has an interest (direct or indirect) in any firm, corporation or
enterprise engaged in a business which is in competition with the
Company, Bank and/or their affiliates, or at any time, either
during employment or thereafter, the Executive divulges any
information concerning the Company, Bank and/or their affiliates
which is or could be of aid to any such competitor. The mere
ownership of a less than a 3% debt and/or equity interest in a
competing company whose stock is publicly held shall not be
considered as having the prohibited interest in a competitor, and
neither shall the mere ownership of a less than a 10% debt and/or
equity interest in a competing company whose stock is not
publicly held. For purposes of this Agreement, any commercial
bank, savings and loan association, securities broker or dealer,
or other business or financial institution that is principally
engaged in the business of offering any service at the time
offered by the Company, Bank
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and/or their affiliates, and which conducts business in any location
encompassed within the areas circumscribed by circles, of which the radii are
50 miles and the mid-points are the geographic centers of Kansas City,
Missouri, and St. Louis, Missouri, shall be deemed to be a competitor.
(c) Should the Company reasonably and in good faith
believe that the Executive has violated any of the foregoing
provisions, it shall give the Executive written notice to such
effect, stating the reason(s) for its belief, and pending a final
determination as to whether there has been a violation may,
without penalty or risk of claim for actual or punitive damages,
suspend payment of any further amount which might otherwise
become payable hereunder after thirty (30) days of giving such
notice. The Company shall, in an expeditious manner, determine
from all information available to it whether the Executive
violated any of the foregoing covenants, and if the Company in
good faith concludes that the Executive has violated this
Agreement, the Executive shall not be entitled to any further
payment hereunder.
(d) The Executive represents, acknowledges and agrees
(i) that his experience and capabilities are such that he can
obtain employment in activities which do not violate such
agreement and that the enforcement by way of injunction of the
agreement not to compete will not prevent the Executive from
earning a livelihood, (ii) that the Company and Bank do not have
an adequate remedy at law for a breach or threatened breach by
the Executive of the covenants in this Section and may obtain
injunctive and other equitable relief, in addition to receiving
its actual damages and any other remedies that may be available
to it hereunder or at law or by statute, (iii) that the covenants
herein contained are reasonable and necessary for the proper
protection of the Company, and (iv) that if any provision or part
of any such covenant is invalidated, the remainder shall
nevertheless continue to be valid and fully enforceable, and if a
court determines that the term of the covenant is too long or the
area covered thereby too great, so that the covenant as written
is unenforceable, the covenant shall be modified to encompass the
longest duration and largest geographic area that the court deems
enforceable under the law.
11. Successors. (a) This Agreement is personal to the
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Executive and without the prior written consent of the Company
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.
(b) This Agreement shall inure to the benefit of and
be binding upon the Company and its successors and assigns.
(c) 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. As used in this Agreement, "Company" shall mean the
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Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform
this Agreement by operation of law, or otherwise.
12. Miscellaneous. (a) This Agreement shall be governed by
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and construed in accordance with the laws of the State of
Missouri, without reference to principles of conflict of laws.
The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors and
legal representatives.
(b) All notices and other communications hereunder
shall be in writing and shall be given by hand delivery to the
other party or by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive:
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Xxxx X. Xxxxxxxx
0000 Xxxxxxxxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
If to the Company:
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Mercantile Bancorporation Inc.
Xxx Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Chairman and Chief Executive Officer
or to such other address as either party shall have furnished to
the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by the
addressee.
(c) The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
(d) The Company may withhold from any amounts payable
under this Agreement such Federal, state, local or foreign taxes
as shall be required to be withheld pursuant to any applicable
law or regulation.
(e) The Executive's or the Company's failure to insist
upon strict compliance with any provision of this Agreement or
the failure to assert any right the Executive or the Company may
have hereunder shall not be deemed to be a waiver of such
provision or right or any other provision or right of this
Agreement.
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(f) The Executive and the Company acknowledge that
effective on the Effective Date the agreement between the
Executive and Xxxx Xxxxx dated as of 2/1/95 will be superseded by
this Agreement, and that the terms and conditions of this
Agreement shall be controlling during the Employment Period.
Employment hereunder shall be deemed to be continued employment
with Xxxx Xxxxx and its successors for purposes of all option
agreements entered into between the Executive and Xxxx Xxxxx
prior to the Effective Date.
(g) Either party shall have the right to seek a
judicial review and determination of any conclusion or action of
the other party concerning the interpretation of the provisions
of this Agreement or the determination of one party that the
other party is in violation of a provision of this Agreement or a
determination of existence of Cause or Good Reason.
IN WITNESS WHEREOF, the Company and the Executive have
caused these presents to be executed in their respective names on
their behalf, all as of the day and year first above written.
s/Xxxx X. Xxxxxxxx
------------------------------------------------
Xxxx X. Xxxxxxxx
MERCANTILE BANCORPORATION INC.
s/Xxxx X. Xxxxxxx
------------------------------------------------
By: Xxxx X. Xxxxxxx
Group President-Emerging Markets
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