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EXHIBIT 10.3
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EMPLOYMENT AGREEMENT
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AGREEMENT by and between Mercantile Bancorporation Inc., a
Missouri corporation (the "Company") and Xxxxx X. Xxxxxxx (the
"Executive"), dated as of the 18th day of November, 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 eighteen months after such date
(the "Employment Period"). In addition, the Company hereby
agrees to nominate the Executive for election to the Board of
Directors of the Company for a three-year term expiring in 2000.
3. Terms of Employment. (a) Position and Duties. (i)
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During the Employment Period, (A) the Executive shall serve as
Chairman of the Board of Directors of the Company's St, Louis
banking affiliate ("Bank") and (B) the Executive's services shall
be performed in St. Louis.
(ii) During the Employment Period, and excluding
any periods of vacation and sick leave to which the Executive is
entitled, and recognizing that Executive is involved in other
non-related business activities, the Executive agrees to be
available from time to time to devote reasonable attention to the
business and affairs of the Bank, including governance of its
Board and business development endeavors.
(b) Compensation. (i) Base Salary. During the
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Employment Period, the Executive shall receive an annual base
salary ("Annual Base Salary") of no less than $420,000. 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
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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 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 $231,000 (the "Minimum Bonus") and (II) for that
portion of any fiscal year 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. The Annual Bonus with respect to
fiscal year 1997 shall be paid no later than January 31, 1998.
(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 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, one of which shall be located in Xxxxxxx,
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Missouri, 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
(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
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(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.
(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.
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, the Company or Bank shall terminate the
Executive's employment other than for Cause, Death or Disability
or the Executive shall terminate employment for Good Reason,
then, subject to Section 6 of this Agreement:
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(i) The Company shall pay to the Executive the
aggregate of the following amounts:
A. The sum of (1) the Executive's Annual Base
Salary through the Date of Termination to the extent not
theretofore paid ("Accrued Salary") and (2) 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 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
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 through the Date of Termination and the denominator of which
is 365 (the sum of the amounts described in clauses (1) and (2)
shall be hereinafter referred to as the "Accrued Obligations");
and
B. The greater of (1) the amount equal to the
product of (i) the number of months remaining in the Employment
Period on the Date of Termination (the "Continuation Period"),
divided by twelve and (ii) the sum of (x) the Executive's Annual
Base Salary and (y) the Annual Bonus paid or payable for the most
recently completed fiscal year during the Employment Period (the
"Recent Annual Bonus"), or, in the event that a fiscal year has
not been completed during the Employment Period as of the Date of
Termination, the Minimum Bonus, and (2) the amount equal to the
sum of (x) the Executive's Annual Base Salary and (y) the Recent
Annual Bonus, payable in 24 equal monthly installments (as
appropriate, the "Termination Payment");
(ii) For the greater of (1) one year or (2) the
Continuation Period, or such longer period as may be provided by
the terms of the appropriate plan, program, practice or policy,
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;
(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").
(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
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for payment of Accrued Obligations and the Termination Payment and the timely
payment or provision of Other Benefits. Accrued Obligations and the
Termination Payment 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
obligation to the Executive, other than for payment of Accrued
Obligations, the Termination Payment and the timely payment or
provision of Other Benefits. Accrued Obligations and the
Termination Payment 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 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. In accordance
with the foregoing and not in limitation thereof the Executive
and his spouse shall be entitled to
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medical coverage in accordance with the letter to the Executive from Xxxxx
Xxxxxx attached hereto as Exhibit A and to retirement benefits in an
amount no less than those indicated on Exhibit B attached hereto.
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.
(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.
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(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 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.
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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 offers any major
service at the time offered by the Company, Bank 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 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,
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suspend payment of any further amount which might otherwise become payable
hereunder. 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
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
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by 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.
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(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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Xxxxx X. Xxxxxxx
00 Xxxxxxxxx Xxxx
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.
(f) The Executive and the Company acknowledge that
effective on the Effective Date the agreement between the
Executive and Xxxx Xxxxx dated as of February 1, 1995, shall 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 judicial
review and determination of any conclusion or action of the other
party concerning the interpretation of the provisions
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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/Xxxxx X. Xxxxxxx
------------------------------------------------
Xxxxx X. Xxxxxxx
MERCANTILE BANCORPORATION INC.
s/Xxxx X. Xxxxxxx
------------------------------------------------
By: Xxxx X. Xxxxxxx
Group President-Emerging Markets
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