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Exhibit 10(a)
EMPLOYMENT AGREEMENT FOR
ANDREW B. CRAIG, III
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BOATMEN'S BANCSHARES, INC.
AUGUST, 1994
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Boatmen's Bancshares, Inc.
Employment Agreement For ANDREW B. CRAIG, III
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This EMPLOYMENT AGREEMENT is made, entered into, and is
effective, contingent upon Compensation Committee approval and
ratification by the Board of Directors, as of this first day of
July, 1994 (the "Effective Date"), by and between Boatmen's
Bancshares, Inc., a Missouri corporation, (the "Company") and
Andrew B. Craig, III (the "Executive").
WHEREAS, the Executive is presently employed by 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.
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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) three (3) years beyond the month in which the
effective date of such Change in Control occurs; or (b) until all
obligations of the Company hereunder have been fulfilled, and
until all benefits provided hereunder have been paid.
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, and
as a member of the Company's Board of Directors if so elected. In
his capacity as Chairman and Chief Executive Officer of the
Company, the Executive shall report directly to the Board of
Director's of the Company, 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) Devote 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.
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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
Six Hundred Fifty Thousand Dollars ($650,000.00) 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. 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 Base Salary, the
Executive shall be eligible to participate in the Company's
short-term incentive program, as such program may exist from
time-to-time, at a level 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 Long-Term 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 the
benefits under such programs 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.
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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 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. Upon the effective
date of such termination, the Company's obligation under this
Agreement to pay and provide to the Executive the elements of pay
described in Sections 4.1, 4.2, and 4.3 shall immediately expire.
However, the Executive shall receive all other rights and
benefits that he is vested in, pursuant to other plans and
programs of the Company.
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 pay and provide to the
Executive the elements of pay described in Sections 4.1, 4.2, and
4.3 shall immediately expire. However, the Executive shall
receive all rights and benefits that he is vested in, pursuant to
other plans and programs of the Company.
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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 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 ninety (90) calendar days prior to the
effective date of such termination.
Upon the effective date of such termination, following the
expiration of the ninety (90) day 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 (for this purpose, the
Executive shall not be paid any Bonus with respect to the fiscal
year in which voluntary termination under this Section 6.3
occurs). 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. However, in the event the terms and provisions of
Article 7 herein apply, the payments and benefits set forth
therein shall apply.
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
three (3) 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,
Disability, Retirement, 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
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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 his 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.
If the Executive's employment is terminated for any of the
reasons 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.
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
effective date of a Change in Control, or the three (3) year
period following the effective date of a Change in Control, the
benefits set forth in Section 7.1 herein).
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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 material 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
current primary residence than is such residence from
the Company's current headquarters, 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) The failure of the Company to continue in effect 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 (for
this purpose, a replacement program, the effect of which
continues the Executive's participation in such program
on substantially the same basis as existed immediately
prior to the effective date of a Change in Control shall
be deemed to be a continuation of the previous program),
or the failure by the Company to continue the
Executive's participation therein on substantially the
same basis, both in terms of the amount of the benefits
provided and the level of the Executive's participation,
relative to other executives of the Company; 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
three (3) year 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 three (3) year period
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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 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 three (3) 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, the Company shall pay to the Executive and
provide him with the following 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 Executive's
average annual bonus earned over the three (3) fiscal
years prior to the Change in Control (whether or not
deferred);
(c) An amount equal to the Executive's unpaid Base Salary
and accrued vacation pay through the effective date of
termination; and
(d) A continuation of the welfare benefits of medical
insurance, dental insurance, and group term life
insurance for three (3) full years from 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.
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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 Retirement (as such term is then defined in the
Company's tax qualified defined benefit retirement plan); 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 thirty (30) day period shall result in the Company's
obligation to make the payments and provide the benefits set
forth in this Section 7.1 in lieu of any other benefits
hereunder).
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 fifty percent (50%) 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;
(d) Removal by the stockholders of all or any of the
incumbent directors of the Company other than a removal
for Cause; or
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(e) 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.
7.3. LIMITATION ON CHANGE-IN-CONTROL BENEFITS.
Notwithstanding any other provision of this Agreement, if any
portion of the benefits provided in Section 7.1 herein (the
"Benefits") or any other payment under this Agreement, or under
any other agreement with or plan of the Company (in the aggregate
"Total Payments") would constitute an "excess parachute payment,"
then the payments to be made to the Executive under this
Agreement shall be reduced such that the value of the aggregate
Total Payments that the Executive is entitled to receive shall be
one dollar ($1) less than the maximum amount which the Executive
may receive without becoming subject to the tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended
(the "Code"), or which the Company may pay without loss of
deduction under Section 280G(a) of the Code.
For purposes of this Agreement, the terms "excess parachute payment"
and "parachute payments" shall have the meanings assigned to them
in Section 280G of the Code, and such "parachute payments" shall
be valued as provided therein.
Within sixty (60) days following delivery of the notice of
employment termination by the Executive or the Company pursuant
to the terms of this Agreement, or notice by the Company to the
Executive of its belief that there is a payment or benefit due
the Executive which will result in an "excess parachute payment"
as defined in Section 280G of the Code, the Executive and the
Company, at the Company's expense, shall obtain the opinion of
such legal counsel, which need not be unqualified, as the
Executive may choose, which sets forth: (i) the amount of the
Executive's "annualized includible compensation for the base
period" (as defined in Code Section 280G(d)(1)); (ii) the present
value of the Total Payments; and (iii) the amount and present
value of any "excess parachute payment." The opinion of such
legal counsel shall be supported by the opinion of a certified
public accounting firm. Such opinion shall be binding upon the
Company and the Executive.
In the event that such opinion determines that there would be
an "excess parachute payment," the benefits provided in Section
7.1 herein, or any other payment determined by such counsel to be
includible in Total Payments shall be reduced or eliminated as
specified by the Executive in writing delivered to the Company
within thirty (30) days of his receipt of such opinion, or, if
the Executive fails to so notify the Company, then as the Company
shall reasonably determine, so that under the basis of
calculations set forth in such opinion, there will be no "excess
parachute payment."
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The provisions of this Section 7.3, including the
calculations, notices, and opinion provided for herein shall be
based upon the conclusive presumption that: (i) the compensation
and benefits provided for in Section 7.1 herein; and (ii) any
other compensation earned prior to the effective date of
employment termination by the Executive pursuant to the Company's
compensation programs (if such payments would have been made in
the future in any event, even though the timing of such payment
is triggered by the Change in Control), are reasonable.
7.4. SUBSEQUENT IMPOSITION OF EXCISE TAX. If, notwithstanding
compliance with the provisions of Section 7.3 herein, it is
ultimately determined by a court or pursuant to a final
determination by the Internal Revenue Service that any portion of
the Total Payments is considered to be a "parachute payment,"
subject to the excise tax under Section 4999 of the Code, which
was not contemplated to be a "parachute payment" at the time of
payment (so as to accurately determine whether a limitation
should have been applied to the Total Payments to maximize the
net benefit to the Executive, as provided in Section 7.3 hereof),
the Executive shall be entitled to receive a lump sum cash
payment sufficient to place the Executive in the same net after-
tax position, computed by using the "Special Tax Rate" as such
term is defined below, that the Executive would have been in had
such payment not been subject to such excise tax, and had the
Executive not incurred any interest charges or penalties with
respect to the imposition of such excise tax. For purposes of
this Agreement, the "Special Tax Rate" shall be the highest
effective Federal and state marginal tax rates applicable to the
Executive in the year in which the payment contemplated under
this Section 7.4 is made.
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
within the two (2) year period after the effective date of
termination; 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 the greater of twelve (12) months following the expiration of
this Agreement, or any other period in which amounts are paid
hereunder, 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 of Missouri.
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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, 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
of 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 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 three (3) 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
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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.
All expenses of such litigation or arbitration, including the
reasonable fees and expenses of the legal representative for the
Executive, and necessary costs and disbursements incurred as a
result of such dispute or legal proceeding, and any prejudgment
interest, shall be borne by the Company.
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 the
Employment Agreement entered into by and between the Company and
the Executive dated the ninth day of November, 1993, 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.
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.
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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 OBLIGATIONS ABSOLUTE. The Company's obligation
to make the payments and the arrangements 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 RIGHTS TO BENEFITS. Subject to approval by
the Company's Compensation Committee and ratification by the
Board of Directors, 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 extent permitted by law,
the Company shall pay all legal fees, costs of 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, subject to Compensation Committee
approval and ratification by the Board of Directors, as of the
Effective Date.
BOATMEN'S BANCSHARES, INC. EXECUTIVE:
By:---------------------------- ----------------------------
ARTHUR J. FLEISCHER ANDREW B. CRAIG, III
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