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EXHIBIT 10.2
[BOATMEN'S BANCSHARES, INC. LETTERHEAD]
May 17, 1996
Xxxxxx X. Xxxxx, III
Chairman and Chief Executive Officer
Boatmen's Bancshares, Inc.
One Boatmen's Plaza
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Dear Xx. Xxxxx:
This letter agreement is in consideration of your not retiring this
spring; it supplements your Employment Agreement dated as of January 30, 1996.
If you had retired and had elected to receive lump-sum payments, your benefits
as of May 1, 1996, would have been $423,294.79 under the Boatmen's Bancshares,
Inc. Retirement Plan for Employees the ("Retirement Plan") and $6,952,466.40
under the Boatmen's Supplemental Retirement Plan (the "BSRP").
Boatmen's Bancshares, Inc. ("Boatmen's") will pay you, in a lump sum
promptly upon the termination of your employment for reasons other than death or
Cause under your Employment Agreement, in addition to the Retirement Plan and
BSRP benefits to which you become entitled at that time, any amount by which the
total lump-sum benefits under the Retirement Plan and the BSRP at that time
would be less than the total of the two dollar amounts in the first paragraph.
If you die while still in Boatmen's employ and your wife does not survive you or
if you die in a common disaster, there would be no benefits under the Retirement
Plan or the BSRP; in such case, Boatmen's will promptly pay the two amounts in
the first paragraph to the trustees of your revocable trust dated July 23, 1993,
as amended. If you die while still in Boatmen's employ but your wife does
survive you, she will receive a 50% periodic-payment benefit under the
Retirement Plan and will be entitled to benefits under the BSRP; in that case,
Boatmen's will also pay her one-half the Retirement Plan amount in the first
paragraph and, if she waives her BSRP benefits, the entire BSRP amount in the
first paragraph.
BOATMEN'S BANCSHARES, INC.
By /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Senior Vice President - Human Resources
ACCEPTED AND APPROVED:
/s/ Xxxxxx X. Xxxxx, III
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Xxxxxx X. Xxxxx, III
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Employment Agreement For
Xxxxxx X. Xxxxx, III
Boatmen's Bancshares, Inc.
January 30, 1996
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Boatmen's Bancshares, Inc.
Employment Agreement For Xxxxxx X. Xxxxx, III
This EMPLOYMENT AGREEMENT is made, entered into, and is effective,
pursuant to Compensation Committee approval and ratification by the Board of
Directors, as of January 30, 1996 (the "Effective Date"), by and between
Boatmen's Bancshares, Inc., a Missouri corporation, (the "Company"), and Xxxxxx
X. Xxxxx, III, (the "Executive").
WHEREAS, the Executive is presently employed the Company in the capacity
of Chairman and Chief Executive Officer; and
WHEREAS, the Executive possesses considerable experience and an intimate
knowledge of the business and affairs of the Company, its policies, methods,
personnel, and operations; and
WHEREAS, the Company recognizes that the Executive's contributions have
been substantial and meritorious and, as such, the Executive has demonstrated
unique qualifications to act in an executive capacity for the Company; and
WHEREAS, the Company is desirous of assuring the continued employment of
the Executive in the above stated capacities, and Executive is desirous of
having such assurance;
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements of the parties set forth in this Agreement, and of
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE 1. TERM OF EMPLOYMENT
The Company hereby agrees to employ the Executive and the Executive
hereby agrees to continue to serve the Company, in accordance with the terms and
conditions set forth herein, for an initial period of three (3) years,
commencing as of the Effective Date of this Agreement, as indicated above;
subject, however, to earlier termination as expressly provided herein.
The initial three (3) year period of employment automatically shall be
extended for one (1) additional year at the end of the initial three (3) year
term, and then again after each successive year thereafter. However, either
party may terminate this Agreement at the end of the initial three (3) year
period, or at the end of any successive one (1) year term thereafter, by giving
the other party written notice of intent not to renew, delivered at least three
(3) months prior to the end of such initial period or successive term. In the
event such notice of intent not to renew is properly delivered, this Agreement,
along with all corresponding rights, duties, and covenants, automatically shall
expire at the end of the initial period or successive term then in progress.
However, regardless of the above, if at any time during the initial
period of employment, or successive term, a Change in Control of the Company
occurs (as defined in Article 7 herein), then this Agreement shall become
immediately irrevocable for the longer of: (a) two (2) years following the
effective date of such Change in Control; or (b) until all obligations of the
Company hereunder have been fulfilled, and until all benefits provided hereunder
have been paid.
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ARTICLE 2. POSITION AND RESPONSIBILITIES
During the term of this Agreement, the Executive agrees to serve as
Chairman and Chief Executive Officer of the Company. In his capacity as
Chairman and Chief Executive Officer of the Company, the Executive shall report
directly to the Board of Directors, and shall maintain the level of duties and
responsibilities as in effect as of the Effective Date, or such higher level of
duties and responsibilities as he may be assigned during the term of this
Agreement. The Executive shall have the same status, privileges, and
responsibilities normally inherent in such capacities in financial institutions
of similar size and character.
ARTICLE 3. STANDARD OF CARE
During the term of this Agreement, the Executive agrees to devote
substantially his full time, attention, and energies to the Company's business
and shall not be engaged in any other business activity, whether or not such
business activity is pursued for gain, profit, or other pecuniary advantage.
However, subject to Article 9 herein, the Executive may serve as a director of
other companies so long as such service is not injurious to the Company. The
Executive covenants, warrants, and represents that he shall:
(a) Xxxxxx his full and best efforts to the fulfillment of his
employment obligations; and
(b) Exercise the highest degree of loyalty and the highest standards
of conduct in the performance of his duties.
This Article 3 shall not be construed as preventing the Executive from
investing assets in such form or manner as will not require his services in the
daily operations of the affairs of the companies in which such investments are
made.
ARTICLE 4. COMPENSATION
As remuneration for all services to be rendered by the Executive during
the term of this Agreement, and as consideration for complying with the
covenants herein, the Company shall pay and provide to the Executive the
following:
4.1 BASE SALARY. The Company shall pay the Executive a Base Salary
in an amount which shall be established from time to time by the Board of
Directors of the Company or the Board's designee; provided, however, that such
Base Salary shall not be less than Seven Hundred Fifty Thousand Dollars dollars
($750,000.00) per year. This Base Salary shall be paid to the Executive in
equal bimonthly installments throughout the year, consistent with the normal
payroll practices of the Company.
The annual Base Salary shall be reviewed at least annually following the
Effective Date of this Agreement, while this Agreement is in force, to ascertain
whether, in the judgment of the Board or the Board's designee, such Base Salary
should be increased, based primarily on the performance of the Executive during
the year and on the then current rate of inflation. If so increased, the Base
Salary as stated above shall, likewise, be increased for all purposes of this
Agreement.
4.2 ANNUAL BONUS. In addition to his salary, the Executive shall be
entitled to participate in the Company's short-term incentive program, as such
program may exist from time to time, at a level
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commensurate with the Executive's position with the Company, as determined at
the sole discretion of the Compensation Committee.
4.3 LONG-TERM INCENTIVES. The Executive shall be eligible to
participate in the Company's 1996 Stock Incentive Plan, as such shall be
amended or superseded from time to time, at a level commensurate with the
Executive's position, as determined at the sole discretion of the Compensation
Committee.
4.4 RETIREMENT BENEFITS. The Company shall provide to the
Executive participation in all Company qualified defined benefit and defined
contribution retirement plans, subject to the eligibility and participation
requirements of such plans. The Executive's retirement benefits shall not be
less than those that would be provided him under the terms of the Boatmen's
Bancshares, Inc. Retirement Plan for Employees and the Boatmen's Supplemental
Retirement Plan in effect as of the Effective Date, or as such benefits shall
be increased, whether or not such benefits shall be decreased or eliminated.
The obligations of the Company pursuant to this Section 4.4 shall survive the
termination of this Agreement.
4.5 EMPLOYEE BENEFITS. The Company shall provide to the Executive
all benefits to which other executives and employees of the Company are
entitled, as commensurate with the Executive's position, subject to the
eligibility requirements and other provisions of such arrangements. Such
benefits shall include, but shall not be limited to, group term life insurance,
comprehensive health and major medical insurance, dental and life insurance,
and short-term and long-term disability.
4.6 PERQUISITES. The Company shall provide to the Executive, at
the Company's cost, all perquisites which are suitable to the character of
Executive's position with the Company and adequate for the performance of his
duties hereunder.
4.7 RIGHT TO CHANGE PLANS. By reason of Sections 4.5 and 4.6
herein, the Company shall not be obligated to institute, maintain, or refrain
from changing, amending, or discontinuing any benefit plan, or perquisite, so
long as such changes are similarly applicable to executive employees generally.
ARTICLE 5. EXPENSES
The Company shall pay or reimburse the Executive for all ordinary and
necessary expenses, in a reasonable amount, which the Executive incurs in
performing his duties under this Agreement including, but not limited to,
travel, entertainment, professional dues and subscriptions, and all dues, fees,
and expenses associated with membership in various professional, business, and
civic associations and societies in which the Executive's participation is in
the best interest of the Company.
ARTICLE 6. EMPLOYMENT TERMINATIONS
6.1 TERMINATION DUE TO RETIREMENT OR DEATH. In the event the
Executive's employment is terminated while this Agreement is in force by reason
of retirement (as defined or provided for under the then established rules of
the Company's tax-qualified retirement plan), or death, the Executive's
benefits shall be determined in accordance with the Company's retirement,
survivor's benefits, insurance, and other applicable programs of the Company
then in effect (provided, however, that such benefits shall be no less than
those set forth in Section 4.4 herein) and, upon the effective date of such
termination, the Company's obligation under this Agreement to provide to the
Executive the elements of pay described in Sections 4.1,
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4.2, and 4.3 shall immediately expire; provided, however, that the Executive
shall receive all rights and benefits that he is vested in, pursuant to the
Plan or Plans described in Section 4.3 herein and other plans and programs of
the Company; and provided further, however, that any retirement during the
periods set forth in Section 7.1 herein shall be subject to the provisions of
Article 7 herein.
6.2 TERMINATION DUE TO DISABILITY. In the event that the Executive
becomes Disabled (as defined below) during the term of this Agreement and is,
therefore, unable to perform his duties herein for more than one hundred eighty
(180) total calendar days during any period of twelve (12) consecutive months,
or in the event of the Board's reasonable expectation that the Executive's
Disability will exist for more than a period of one hundred eighty (180)
calendar days, the Company shall have the right to terminate the Executive's
active employment as provided in this Agreement. However, the Board shall
deliver written notice to the Executive of the Company's intent to terminate
for Disability at least thirty (30) calendar days prior to the effective date
of such termination.
A termination for Disability shall become effective upon the end of
the thirty (30) day notice period. Upon such effective date, the Company's
obligation to provide to the Executive the elements of pay described in
Sections 4.1, 4.2, and 4.3 shall immediately expire; provided, however, that
the Executive shall receive all rights and benefits that he is vested in,
pursuant the plan or plans described in Section 4.3 herein and to other plans
and programs of the Company.
The term "Disability" shall mean, for all purposes of this Agreement,
the incapacity of the Executive, due to injury, illness, disease, or bodily or
mental infirmity, to engage in the performance of substantially all of the
usual duties of employment with the Company as contemplated by Article 2
herein, such Disability to be determined by the Board of Directors of the
Company upon receipt of and in reliance on competent medical advice from one
(1) or more individuals, selected by the Board, who are qualified to give such
professional medical advice.
It is expressly understood that the Disability of the Executive for a
period of one hundred eighty (180) calendar days or less in the aggregate
during any period of twelve (12) consecutive months, in the absence of any
reasonable expectation that his Disability will exist for more than such a
period of time, shall not constitute a failure by him to perform his duties
hereunder and shall not be deemed a breach or default and the Executive shall
receive full compensation for any such period of Disability or for any other
temporary illness or incapacity during the term of this Agreement.
6.3 VOLUNTARY TERMINATION BY THE EXECUTIVE. The Executive may
terminate this Agreement at any time by giving the Board of Directors of the
Company written notice of intent to terminate, delivered at least three (3)
months prior to the effective date of such termination.
Upon the effective date of such termination, following the expiration
of the three (3) months notice period, the Company shall pay the Executive his
full Base Salary, at the rate then in effect as provided in Section 4.1,
herein, through the effective date of termination, plus all other benefits to
which the Executive has a vested right at that time. In the event that the
terms and provisions of Article 7 herein do not apply to such termination, the
Company and the Executive thereafter shall have no further obligations under
this Agreement except as provided in Section 4.4 and Article 9 herein.
However, in the event the terms and provisions of Article 7 herein apply, the
payments and benefits set forth therein shall apply.
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6.4 INVOLUNTARY TERMINATION BY THE COMPANY WITHOUT CAUSE. At all
times prior to six (6) full calendar months before the effective date of a
Change in Control, or at any time more than two (2) years after the effective
date of a Change in Control, the Board may terminate the Executive's
employment, as provided under this Agreement, at any time, for reasons other
than death or Disability, or for Cause, by notifying the Executive in writing
of the Company's intent to terminate, at least thirty (30) calendar days prior
the effective date of such termination.
Upon the effective date of such termination, following the expiration
of the thirty (30) day notice period, the Company shall pay to the Executive a
lump-sum cash payment equal to the greater of: (a) the Base Salary then in
effect for the remaining term of this Agreement (assuming no additional
extensions of this Agreement's term beyond that in effect as of the effective
date of termination), together with continuation of health and welfare benefits
for the remaining term of this Agreement; or (b) one (1) full year of his Base
Salary in effect as of the effective date of termination, plus a one (1) year
continuation of health and welfare benefits.
Further, the Company shall pay the Executive all other benefits to
which the Executive has a vested right at the time, according to the
provisions of the governing plan or program. The Company and the Executive
thereafter shall have no further obligations under this Agreement except as
provided in Section 4.4 and Article 9 herein.
If the Executive's employment is terminated during the periods set
forth in Section 7.1 herein, the Executive shall be entitled to receive the
benefits provided in Section 7.1 herein in lieu of the benefits set forth in
this Section 6.4.
6.5 TERMINATION FOR CAUSE. Nothing in this Agreement shall be
construed to prevent the Board from terminating the Executive's employment
under this Agreement for "Cause".
"Cause" shall be defined as conduct of the Executive which is finally
adjudged to be knowingly fraudulent, deliberately dishonest or willful
misconduct. The Company's Board of Directors, by majority vote, shall make the
determination of whether Cause exists, after providing the Executive with notice
of the reasons the Board believes Cause may exist and after giving the
Executive the opportunity to respond to the allegation that Cause exists.
In the event this Agreement is terminated by the Board for Cause, the
Company shall pay the Executive his Base Salary through the effective date of
the employment termination and the Executive shall immediately thereafter
forfeit all rights and benefits (other than vested benefits) he would otherwise
have been entitled to receive under this Agreement. The Company and the
Executive thereafter shall have no further obligations under this Agreement
except as provided in Article 9 herein.
6.6 TERMINATION FOR GOOD REASON. At any time during the term of
this Agreement, the Executive may terminate this Agreement for Good Reason (as
defined below) by giving the Board of Directors of the Company thirty (30)
calendar days written notice of intent to terminate, which notice sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
such termination.
Upon the expiration of the thirty (30) day notice period, the Good
Reason termination shall become effective, and the Company shall pay and
provide to the Executive the benefits set forth in this Section 6.6 (or, in the
event of termination for Good Reason within the six (6) full calendar month
period prior to the
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effective date of a Change in Control, or within two (2) years following the
effective date of a Change in Control, the benefits set forth in Section 7.1
herein).
Good Reason shall mean, without the Executive's express written
consent, the occurrence of any one or more of the following:
(a) The assignment of the Executive to duties materially
inconsistent with the Executive's authorities, duties,
responsibilities, and status (including offices, titles, and
reporting requirements) as an officer of the Company, or a
reduction or alteration in the nature or status of the
Executive's authorities, duties, or responsibilities from those
in effect during the immediately preceding fiscal year;
(b) Without the Executive's consent, the Company's requiring the
Executive to be based at a location which is at least fifty
(50) miles further from the Executive's primary residence at
the time such requirement is imposed than is such residence
from the Company's office at which the Executive is primarily
rendering services at such time, except for required travel on
the Company's business to an extent substantially consistent
with the Executive's business obligations as of the Effective
Date;
(c) A reduction by the Company in the Executive's Base Salary as in
effect on the Effective Date, as provided in Section 4.1
herein, or as the same shall be increased from time to time;
(d) A material reduction in the Executive's level of participation
in any of the Company's short- and/or long-term incentive
compensation plans, or employee benefit or retirement plans,
policies, practices, or arrangements in which the Executive
participates as of the Effective Date; provided, however, that
reductions in the levels of participation in any such plans
shall not be deemed to be "Good Reason" if the Executive's
reduced level of participation in each such program remains
substantially consistent with the average level of
participation of other executives who have positions
commensurate with the Executive's position; or
(e) The failure of the Company to obtain a satisfactory agreement
from any successor to the Company to assume and agree to
perform this Agreement, as contemplated in Section 10.1 herein.
Upon a termination of the Executive's employment for Good Reason at any
time other than the six (6) full calendar month period prior to the effective
date of a Change in Control, or the two (2) years period following the
effective date of a Change in Control, the Executive shall be entitled to
receive the same payments and benefits as he is entitled to receive following
an involuntary termination of his employment by the Company without Cause, as
specified in Section 6.4 herein. The payment of Base Salary and pro rata Bonus
shall be made to the Executive within thirty (30) calendar days following the
effective date of employment termination. Upon a termination for Good Reason
within the six (6) full calendar month period prior to the effective date of a
Change in Control, or within the two (2) years following the effective date of
a Change in Control, the Executive shall be entitled to receive the payments
and benefits set forth in Section 7.1 herein in lieu of those set forth in this
Section 6.6.
The Executive's right to terminate employment for Good Reason shall not
be affected by the Executive's incapacity due to physical or mental illness.
The Executive's continued employment shall not
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constitute consent to, or a waiver of rights with respect to, any circumstance
constituting Good Reason herein.
ARTICLE 7. CHANGE IN CONTROL
7.1 EMPLOYMENT TERMINATIONS IN CONNECTION WITH A CHANGE IN
CONTROL. In the event of a Qualifying Termination (as defined below) within
six (6) full calendar months prior to the effective date of a Change in
Control, or within two years following the effective date of a Change in
Control, then in lieu of all other benefits provided to the Executive under the
provisions of this Agreement (other than the first sentence of Section 4.4
herein and without derogation of his rights to receive vested benefits under
the Company's Amended 1982 Long Term Incentive Plan and the plan or plans
described in Section 4.3 herein), the Company shall pay to the Executive and
provide him with the following severance benefits (hereinafter referred to as
the "Severance Benefits"):
(a) An amount equal to three (3) times the highest rate of the
Executive's annualized Base Salary rate in effect at any time
up to and including the effective date of termination;
(b) An amount equal to three (3) times the greater of: (i) the
Executive's average annual bonus earned over the three (3)
fiscal years prior to the Change in Control (whether or not
deferred); or (ii) the Executive's target bonus established
for the fiscal year in which the Executive's effective date of
termination occurs;
(c) An amount equal to the Executive's unpaid Base Salary and
accrued vacation pay through the effective date of termination;
(d) A continuation of the welfare benefits of medical insurance,
dental insurance, and life insurance for three (3) full years
after the effective date of termination. These benefits shall
be provided to the Executive at the same premium cost, and at
the same coverage level, as in effect as of the Executive's
effective date of termination. However, in the event the
premium cost and/or level of coverage shall change for all
employees of the Company, the cost and/or coverage level,
likewise, shall change for the Executive in a corresponding
manner.
The continuation of these welfare benefits shall be
discontinued prior to the end of the three (3) year period in
the event the Executive has available substantially similar
benefits from a subsequent employer, as determined by the
Company's Board of Directors or the Board's designee.
(e) A lump-sum cash payment of the actuarial present value
equivalent of the aggregate benefits accrued by the Executive
as of the effective date of termination under the terms of any
and all supplemental retirement plans in which the Executive
participates (subject to the provisions of the second sentence
of Section 4.4 herein). For this purpose, such benefits shall
be calculated under the assumption that the Executive's
employment continued following the effective date of
termination for three (3) full years (i.e., three (3)
additional years of age and service credits shall be added);
provided, however, that for purposes of determining "final
average pay" under such programs, the Executive's actual pay
history as of the effective date of termination shall be used.
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(f) A lump-sum cash payment of the entire balance of the
Executive's compensation which has been deferred under the
Company's nonqualified deferred compensation plan(s) together
with all interest that has been credited with respect to
such deferred compensation balance.
For purposes of this Article 7, a Qualifying Termination shall mean
any termination of the Executive's employment other than: (1) by the Company
for Cause (as provided in Section 6.5 herein); (2) by reason of death,
Disability (as provided in Section 6.2 herein), or voluntary retirement;
provided, however, that a termination which qualifies as a retirement and which
occurs within the thirty (30) day period described in clause (3) of this
Section 7.1 below will be deemed to be a Qualifying Termination); or (3) by the
Executive without Good Reason (as provided in Section 6.6 herein, but
specifically excluding voluntary terminations within the period beginning on
the first anniversary of the effective date of the Change in Control and ending
thirty (30) days after such date -- i.e., any voluntary termination by the
Executive within such period shall be deemed to be a Qualifying Termination).
7.2 DEFINITION OF "CHANGE IN CONTROL."
A Change in Control of the Company shall be deemed to have occurred as
of the first day any one or more of the following conditions shall have been
satisfied:
(a) Any individual, corporation (other than the Company),
partnership, trust, association, pool, syndicate, or any other
entity or any group of persons acting in concert becomes the
beneficial owner, as that concept is defined in Rule 13d-3
promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, of securities of the Company
possessing twenty percent (20%) or more of the voting power for
the election of directors of the Company;
(b) There shall be consummated any consolidation, merger, or other
business combination involving the Company or the securities of
the Company in which holders of voting securities of the
Company immediately prior to such consummation own, as a group,
immediately after such consummation, voting securities of the
Company (or, if the Company does not survive such transaction,
voting securities of the corporation surviving such
transaction) having less than sixty percent (60%) of the total
voting power in an election of directors of the Company (or
such other surviving corporation);
(c) During any period of two (2) consecutive years, individuals who
at the beginning of such period constitute the directors of the
Company cease for any reason to constitute at least a majority
thereof unless the election, or the nomination for election by
the Company's shareholders, of each new director of the
Company was approved by a vote of at least two-thirds (2/3) of
the directors of the Company then still in office who were
directors of the Company at the beginning of any such period;
or
(d) There shall be 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 (on a consolidated basis) to a party which is not
controlled by or under common control with the Company.
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7.3 EXCISE TAX EQUALIZATION PAYMENT. In the event that the
Executive becomes entitled to Severance Benefits or any other payment or
benefit under this Agreement, or under any other agreement with or plan of the
Company (in the aggregate, the "Total Payments"), if any of the Total Payments
will be subject to the tax (the "Excise Tax") imposed by Section 4999 of the
Code (or any similar tax that may hereafter be imposed), the Company shall pay
to the Executive in cash an additional amount (the "Gross-Up Payment") such
that the net amount retained by the Executive after deduction of any Excise Tax
upon the Total Payments and any Federal, state and local income tax and Excise
Tax upon the Gross-Up Payment provided for by this Section 7.3 (including FICA
and FUTA), shall be equal to the Total Payments. Such payment shall be made by
the Company to the Executive as soon as practical following the effective date
of termination, but in no event beyond thirty (30) days from such date.
7.4 TAX COMPUTATION. For purposes of determining whether any of
the Total Payments will be subject to the Excise Tax and the amounts of such
Excise Tax:
(a) Any other payments or benefits received or to be received by
the Executive in connection with a Change in Control of the
Company or the Executive's termination of employment (whether
pursuant to the terms of this Agreement or any other plan,
arrangement, or agreement with the Company, or with any person
(which shall have the meaning set forth in Section 3(a)(9) of
the Securities Exchange Act of 1934, including a "group" as
defined in Section 13(d) therein) whose actions result in a
Change in Control of the Company or any person affiliated with
the Company or such persons) shall be treated as "parachute
payments" within the meaning of Section 280G(b)(2) of the
Code, and all "excess parachute payments" within the meaning of
Section 280G(b)(1) shall be treated as subject to the Excise
Tax, unless in the opinion of tax counsel as supported by the
Company's independent auditors and acceptable to the Executive,
such other payments or benefits (in whole or in part) do not
constitute parachute payments, or unless such excess parachute
payments (in whole or in part) represent reasonable
compensation for services actually rendered within the meaning
of Section 280G(b)(4) of the Code in excess of the base amount
within the meaning of Section 280G(b)(3) of the Code, or are
otherwise not subject to the Excise Tax;
(b) The amount of the Total Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of:
(i) the total amount of the Total Payments; or (ii) the amount
of excess parachute payments within the meaning of Section
280G(b)(1) (after applying clause (a) above); and
(c) The value of any noncash benefits or any deferred payment or
benefit shall be determined by the Company's independent
auditors in accordance with the principles of Sections
280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay Federal income taxes at the highest marginal
rate of Federal income taxation in the calendar year in which the Gross-Up
Payment is to be made, and state and local income taxes at the highest marginal
rate of taxation in the state and locality of the Executive's residence on the
effective date of termination, net of the maximum reduction in Federal income
taxes which could be obtained from deduction of such state and local taxes.
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7.5 SUBSEQUENT RECALCULATION. In the event the Internal Revenue
Service adjusts the computation of the Company under Section 7.4 herein so that
the Executive did not receive the greatest net benefit, the Company shall
reimburse the Executive for the full amount necessary to make the Executive
whole, plus a market rate of interest, as determined by the Committee.
ARTICLE 8. OUTPLACEMENT ASSISTANCE
Following a Qualifying Termination (as defined in Section 7.1 herein)
the Executive shall be reimbursed by the Company for the costs of all
outplacement services obtained by the Executive; provided, however, that the
total reimbursement shall be limited to an amount equal to fifteen percent
(15%) of the Executive's Base Salary as of the effective date of termination.
ARTICLE 9. NONCOMPETITION
9.1 Prohibition on Competition. Without the prior written consent
of the Company, during the term of this Agreement, and for twelve (12) months
following the expiration or other termination of this Agreement the Executive
shall not, as an employee or an officer, engage directly or indirectly in any
business or enterprise which is "in competition" with the Company or its
successors or assigns. For purposes of this Agreement, a business or
enterprise will be deemed to be "in competition" if it is engaged in any
significant business activity of the Company or its subsidiaries within the
state (or states, if changed from time to time) within which, during the two
(2) years immediately preceding such termination of employment, the Executive
has been principally engaged in business for the Company or its subsidiaries.
However the Executive shall be allowed to purchase and hold for
investment less than three percent (3%) of the shares of any corporation whose
shares are regularly traded on a national securities exchange or in the
over-the-counter market.
9.2 DISCLOSURE OF INFORMATION. The Executive recognizes that he
has access to and knowledge of certain confidential and proprietary information
of the Company which is essential to the performance of his duties under this
Agreement. The Executive will not, during or after the term of his employment
by the Company, in whole or in part, disclose such information to any person,
firm, corporation, association, or other entity for any reason or purpose
whatsoever, nor shall he make use of any such information for his own purposes.
9.3 COVENANTS REGARDING OTHER EMPLOYEES. During the term of this
Agreement, and for a period of twenty four (24) months following the expiration
of this Agreement, the Executive agrees not to attempt to induce any employee
of the Company to terminate his or her employment with the Company, to accept
employment with any competitor of the Company, or to interfere in a similar
manner with the business of the Company.
ARTICLE 10. ASSIGNMENT
10.1 ASSIGNMENT BY COMPANY. This Agreement may and shall be
assigned or transferred to, and shall be binding upon and shall inure to the
benefit of, any successor of the Company, and any such successor shall be
deemed substituted for all purposes for the "Company" under the terms of this
Agreement. As used in this Agreement, the term "successor" shall mean any
person, firm, corporation, or business entity which at any time, whether by
merger, purchase, or otherwise, acquires all or substantially all of the assets
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or the business of the Company. Notwithstanding such assignment, the Company
shall remain, with such successor, jointly and severally liable for all its
obligations hereunder.
Failure of the Company to obtain the agreement of any successor to be
bound by the terms of this Agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement, and shall immediately entitle
the Executive to compensation from the Company in the same amount and on the
same terms as the Executive would be entitled in the event of a termination of
employment for Good Reason within two (2) years after a Change in Control, as
provided in Article 7 herein. Except as herein provided, this Agreement may not
otherwise be assigned by the Company.
10.2 ASSIGNMENT BY EXECUTIVE. The services to be provided by the
Executive to the Company hereunder are personal to the Executive, and the
Executive's duties may not be assigned by the Executive; provided, however that
this Agreement shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, and administrators,
successors, heirs, distributees, devisees, and legatees. If the Executive dies
while any amounts payable to the Executive hereunder remain outstanding, all
such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the Executive's devisee, legatee, or other
designee or, in the absence of such designee, to the Executive's estate.
ARTICLE 11. DISPUTE RESOLUTION AND NOTICE
11.1 DISPUTE RESOLUTION. The Executive shall have the right
and option to elect to have any good faith dispute or controversy arising under
or in connection with this Agreement settled by litigation or by arbitration.
If arbitration is selected, such proceeding shall be conducted before a
panel of three (3) arbitrators sitting in a location selected by the Executive
within fifty (50) miles from the location of his principal place of employment,
in accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the award of the arbitrators in any court
having competent jurisdiction.
11.2 NOTICE. Any notices, requests, demands, or other
communications provided for by this Agreement shall be sufficient if in writing
and if sent by registered or certified mail to the Executive at the last
address he has filed in writing with the Company or, in the case of the Company,
at its principal offices.
ARTICLE 12. MISCELLANEOUS
12.1 ENTIRE AGREEMENT. This Agreement supersedes any prior
agreements or understandings, oral or written, between the parties hereto, with
respect to the subject matter hereof, and constitutes the entire agreement of
the parties with respect thereto. Without limiting the generality of the
foregoing sentence, this Agreement completely replaces and supersedes any and
all prior employment agreements entered into by and between the Company and the
Executive, and all amendments thereto, in their entirety.
12.2 MODIFICATION. This Agreement shall not be varied, altered,
modified, canceled, changed, or in any way amended except by mutual agreement
of the parties in a written instrument executed by the parties hereto or their
legal representatives.
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12.3 SEVERABILITY. In the event that any provision or portion of
this Agreement shall be determined to be invalid or unenforceable for any
reason, the remaining provisions of this Agreement shall be unaffected thereby
and shall remain in full force and effect.
12.4 COUNTERPARTS. This Agreement may be executed in one (1) or
more counterparts, each of which shall be deemed to be an original, but all of
which together will constitute one and the same Agreement.
12.5 TAX WITHHOLDING. The Company may withhold from any benefits
payable under this Agreement all Federal, state, city, or other taxes as may be
required pursuant to any law or governmental regulation or ruling.
12.6 BENEFICIARIES. The Executive may designate one or more persons
or entities as the primary and/or contingent beneficiaries of any amounts to be
received under this Agreement. Such designation must be in the form of a
signed writing acceptable to the Board or the Board's designee. The Executive
may make or change such designation at any time.
12.7 PAYMENT OBLIGATION ABSOLUTE. The Company's obligation to make
the payments and the arrangement provided for herein shall be absolute and
unconditional, and shall not be affected by any circumstances, including,
without limitation, any offset, counterclaim, recoupment, defense, or other
right which the Company may have against the Executive or anyone else. All
amounts payable by the Company hereunder shall be paid without notice or
demand. Each and every payment made hereunder by the Company shall be final,
and the Company shall not seek to recover all or any part of such payment from
the Executive or from whomsoever may be entitled thereto, for any reasons
whatsoever.
The Executive shall not be obligated to seek other employment in
mitigation of the amounts payable or arrangements made under any provision of
this Agreement, and the obtaining of any such other employment shall in no
event effect any reduction of the Company's obligations to make the payments
and arrangements required to be made under this Agreement, except to the extent
provided in Section 7.1(d) herein.
12.8 CONTRACTUAL RIGHT TO BENEFITS. This Agreement establishes and
vests in the Executive a contractual right to the benefits to which he is
entitled hereunder. However, nothing herein contained shall require or be
deemed to require, or prohibit or be deemed to prohibit, the Company to
segregate, earmark, or otherwise set aside any funds or other assets, in trust
or otherwise, to provide for any payments to be made or required hereunder.
12.9 PAYMENT OF LEGAL FEES. To the extend permitted by law, the
Company shall pay all legal fees, costs of arbitration and litigation,
prejudgment interest, and other expenses incurred in good faith by the
Executive as a result of the Company's refusal to provide the benefits to which
the Executive becomes entitled under this Agreement, or as a result of the
Company's contesting the validity, enforceability, or interpretation of this
Agreement, or as a result of any conflict between the parties pertaining to
this Agreement.
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ARTICLE 13. GOVERNING LAW
To the extent not preempted by Federal law, the provisions of this
Agreement shall be construed and enforced in accordance with the laws of the
state of Missouri.
IN WITNESS WHEREOF, the Executive and the Company have executed this
Agreement, pursuant to Compensation Committee approval and ratification by the
Board of Directors, as of the Effective Date.
BOATMEN'S BANCSHARES, INC. EXECUTIVE:
By: /s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxx X. Xxxxx, III
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