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Exhibit 10(b)
EMPLOYMENT AGREEMENT FOR
SAMUEL B. HAYES, III
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BOATMEN'S BANCSHARES, INC.
AUGUST, 1994
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Boatmen's Bancshares, Inc.
Employment Agreement For SAMUEL B. HAYES, 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 Samuel B. Hayes, III
(the "Executive").
WHEREAS, the Executive is presently employed by the
Company in the capacity of President; 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 President of the Company, and as a
member of the Company's Board of Directors if so
elected. In his capacity as President of the Company,
the Executive shall report directly to the Chairman and
Chief Executive Officer 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 Four Hundred Eighty Five Thousand Dollars
($485,000.00) 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 SAMUEL B. HAYES, III
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