EXHIBIT 10J
[DATE]
[NAME]
[TITLE]
First Bank System, Inc.
601 Second Avenue South
Minneapolis, MN 55402
Dear [NAME]:
First Bank System, Inc. recognizes that your contribution to the growth and
success of the Company (as defined herein) has been substantial and desires to
assure the Company of your continued employment. In this connection, the Board
of Directors (as defined herein) recognizes that, as is the case with many
publicly held companies, the possibility of a change in control may exist and
that such possibility, and the uncertainty and questions which it may raise
among management, may result in the departure or distraction of management
personnel to the detriment of the Company and its shareholders.
The Board of Directors has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of members of the
Company's management, including yourself, to their assigned duties without
distraction in the face of potentially disturbing circumstances arising from the
possibility of a change in control of the Company.
In order to induce you to remain in the employ of the Company, the Company
agrees that you shall receive the severance benefits set forth in this letter
agreement ("Agreement") in the event your employment with the Company is
terminated under the circumstances described below:
1. Term of Agreement. This Agreement will commence on the date hereof and
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shall continue in effect until the third anniversary of the date hereof;
and, commencing on the first anniversary of the date hereof and on each
anniversary thereafter, the term of this Agreement shall automatically be
extended for one additional year unless, not later than 90 days prior to
any such date of automatic extension of this Agreement, the Company shall
have given notice that the Agreement will not be so extended; provided,
however, if a Change in Control shall have occurred during the original or
any extended term of this Agreement, this Agreement shall in all events
continue in effect for a period of at least 24 months following a Change in
Control; provided, further, that if you become entitled to payments in
accordance with Sections 4 and 5 of this Agreement (or assert a claim for
such payments) during the term of this Agreement as heretofore described,
this Agreement will thereafter survive indefinitely to ensure that you
receive all payments and benefits to which you are entitled pursuant to the
terms hereof.
2. Definitions. When the following terms are used in this Agreement with
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initial capital letters, they shall have the following meanings.
2.1. "Acquiring Person" shall mean any Person who or which, together with
all Affiliates and Associates of such person, is the "beneficial owner" (as
defined in Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Company representing 20% or more of the
combined voting power of the Company's then outstanding securities, but
shall not include any Company Entity.
2.2. "Affiliate" shall have the meaning ascribed to such term in Rule 12b-
2 promulgated under the Exchange Act.
2.3. "Announcement Date" shall mean the date of the public announcement of
the transaction, event or course of action that results in a Change in
Control.
2.4. "Anticipatory Termination" shall mean a Termination of Employment as
a result of an act or event that occurs prior to a Change in Control and
after the Announcement Date and either (i) at the request of any other
party to a transaction, or any Person associated with the event or course
of events (other than the Company or a Company Entity), that results in a
Change in Control, or (ii) otherwise in contemplation of a Change in
Control.
2.5. "Associate" shall have the meaning ascribed to such term in Rule
12b-2 promulgated under the Exchange Act.
2.6. "Beneficial Owner" shall have the meaning ascribed to such term in
Rule 13d-3 promulgated under the Exchange Act.
2.7. "Board of Directors" shall mean the board of directors of the
Company.
2.8. "Cause" shall mean (i) the willful and continued failure by you to
substantially perform your duties with the Company (other than any such
failure resulting from your disability or from termination by you for Good
Reason), after a written demand for substantial performance is delivered to
you that specifically identifies the manner in which the Company believes
that you have not substantially performed your duties, and you have failed
to resume substantial performance of your duties on a continuous basis
within 14 days of receiving such demand, (ii) in the case of a Full Change
in Control, the willful engaging by you in conduct which is demonstrably
and materially injurious to the Company, monetarily or otherwise; and in
the case of a Partial Change in Control, gross and willful misconduct
during the course of employment, including but not limited to, wrongful
appropriation of funds
of the Company or its Affiliates or the commission of a gross misdemeanor
or felony, or (iii) your conviction of a felony which impairs your ability
substantially to perform your duties with the Company. For purposes of this
definition, no act, or failure to act, on your part shall be deemed
"willful" unless done, or omitted to be done, by you not in good faith and
without reasonable belief that your action or omission was in the best
interest of the Company.
2.9. "Change in Control" shall mean a Full Change in Control or a Partial
Change in Control.
2.10. "Code" shall mean the Internal Revenue Code of 1986, as amended.
2.11. "Company" shall mean First Bank System, Inc., a Delaware
corporation, or any successor thereto pursuant to Section 8 hereof
(including a Resulting Corporation) or by operation of law.
2.12. "Company Entity" shall mean the Company, any subsidiary of the
Company or any employee benefit plan of the Company or of any subsidiary of
the Company or any entity holding shares of the voting capital stock of the
Company organized, appointed or established for, or pursuant to the terms
of, any such plan.
2.13. "Continuing Director" shall mean any person who is a member of the
Board of Directors, while such person is a member of the Board of
Directors, who is not an Acquiring Person or an Affiliate or Associate of
an Acquiring Person, or a representative of an Acquiring Person or of any
such Affiliate or Associate, and who (x) was a member of the Board of
Directors as of the date of this Agreement or (y) subsequently becomes a
member of the Board of Directors, if such person's initial nomination for
election or initial election to the Board of Directors has been approved in
advance by the Continuing
Directors; provided that any director designated by or on behalf of a
Person who has entered into an agreement with the Company (or who is
contemplating entering into such an agreement) to effect a consolidation or
merger of the Company or a Company Entity, or other reorganization, with or
into one or more entities which are not Company Entities, and any director
that serves in connection with the act of the Board of Directors of
increasing the number of directors and filling vacancies in connection
with, or in contemplation of, any such transaction, shall not be deemed to
have received such advance approval for initial nomination or election, and
any such director shall not be deemed to be a Continuing Director;
provided, further, that any such director shall subsequently become a
Continuing Director at such time as a new term of office as a director is
approved by the Company's shareholders at an annual meeting of shareholders
occurring subsequent to the completion of any such transaction (and
excluding any annual meeting at which the shareholders approve any such
transaction); and, provided, further, that in the case of a Permitted
Transaction, any such director shall not become a Continuing Director until
the later of (i) the end of the three-year period following consummation of
such Permitted Transaction or (ii) such time as a new term of office as a
director is approved by the Company's shareholders at an annual meeting of
shareholders occurring subsequent to the completion of such Permitted
Transaction.
2.14. "Date of Termination" shall mean the date specified in the Notice of
Termination (except in the case of your death, in which case Date of
Termination shall be the date of death); provided, however, that if your
employment is terminated by the Company, in the case of a Full Change in
Control the date specified in the Notice of Termination shall be at least
30 days from the date the Notice of Termination is given to you, except in
the case of termination for Cause which may be a shorter period, and if
your employment is terminated by you for Good Reason, the date specified in
the Notice of Termination shall not be more than 30 days from the date the
Notice of Termination is given to the Company. Notwithstanding the
foregoing, in the event of an Anticipatory Termination, the Date of
Termination shall be deemed to be the date of the Change in Control. If
Notice of Termination is given by you for Good Reason (Partial), and prior
to the Date of Termination the Company terminates your employment for
Cause, the Date of Termination shall be the date specified in the Notice of
Termination provided by the Company in connection with the termination for
Cause. If Notice of Termination is given by you for Good Reason (Full),
the Company shall not be entitled to terminate your employment for Cause
following such Notice of Termination.
2.15. "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
2.16. "Full Change In Control" shall mean:
(A) the public announcement (which, for purposes of this definition,
shall include, without limitation, a report filed pursuant to Section 13(d)
of the Exchange Act) by the Company or any Person that a Person (other than
a Company Entity) has become the Beneficial Owner, directly or indirectly,
of securities of the Company (x) representing 20% or more, but not more
than 50%, of the combined voting power of the Company's then outstanding
securities unless the transaction resulting in such ownership has been
approved in advance by the Continuing Directors or (y) representing more
than 50% of the combined voting power of the Company's then outstanding
securities (regardless of any approval by the Continuing Directors); or
(B) the Continuing Directors cease to constitute a majority of the
Board of Directors of the Company or the Resulting Corporation, except in
accordance with the terms of a Permitted Transaction and except as a result
of the death, retirement or disability of one or more Continuing Directors
(unless any such death, retirement or disability occurs following a
Permitted Transaction and any vacancies created thereby are not filled in
accordance with the terms of the written agreement governing such Permitted
Transaction); or
(C) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all or substantially all of the
consolidated assets of the Company and its subsidiaries or the adoption of
any plan of liquidation or dissolution of the Company.
2.17. "Good Reason" shall mean either Good Reason (Full) or Good Reason
(Partial).
2.18. "Good Reason (Full)" shall mean the occurrence of any one or more of
the following events, without your express written consent, within 24
months following a Full Change in Control (or prior to a Full Change in
Control in the event of an Anticipatory Termination):
(A) the assignment to you of any duties inconsistent in any respect
with your position (including status, offices, titles, and reporting
requirements), authorities, duties, or other responsibilities as in effect
immediately prior to the Announcement Date or any other action of the
Company which results in a diminishment in such position, authority,
duties, or responsibilities, other than an insubstantial and inadvertent
action which is remedied by the Company promptly after receipt of notice
thereof given by you;
(B) a reduction by the Company in your base salary as in effect
immediately prior to the Announcement Date (or as in effect following the
Announcement Date, if greater);
(C) the failure by the Company to provide you total cash compensation
(consisting of base salary plus cash bonus) with respect to any fiscal year
or portion thereof at least equal to the greatest of (i) actual total cash
compensation paid to you with respect to the prior fiscal year, (ii) the
average annual total cash compensation paid to you with respect to the
prior two fiscal years or (iii) if you were not an employee for the entire
prior fiscal year, your base salary plus target bonus as in effect
immediately prior to the Announcement Date (or as in effect following the
Announcement Date, if greater); (total cash compensation "with respect to
any fiscal year or portion thereof" shall be determined at the time the
bonus with respect to such fiscal year or portion thereof is determined,
even if such bonus is determined after the 24-month period following a Full
Change in Control, and the bonus portion of cash compensation for services
rendered in any portion of a fiscal year within 24 months following a Full
Change in Control shall be determined by reference to the pro-rata portion
of any annual bonus for such fiscal year);
(D) the Company's requiring you to be based at a location that is both
outside the same metropolitan area of, and in excess of 30 miles from, the
location of your principal office immediately prior to the Announcement
Date;
(E) the failure by the Company to provide employee benefit plans,
programs, policies and practices (including, without limitation, retirement
plans and medical, dental, life and disability insurance coverage) to you
and your family and dependents (if applicable) that provide substantially
similar benefits, in terms of aggregate monetary value, to you and your
family and dependents (if applicable) at substantially similar costs to you
as the benefits provided by those plans, programs, policies and practices
in effect immediately prior to the Announcement Date (or as in effect
following the Announcement Date, if greater);
(F) the failure of the Company to obtain a satisfactory agreement from
the Resulting Corporation or any other successor to the Company to assume
and agree to perform this Agreement, as contemplated in Section 8 hereof;
and
(G) any purported termination by the Company of your employment that
is not effected pursuant to a Notice of Termination.
2.19. "Good Reason (Partial)" shall mean the occurrence of any one or more
of the following events, without your express written consent, within 24
months following a Partial Change in Control (or prior to a Partial Change
in Control in the event of an Anticipatory Termination):
(A) a reduction by the Company in your base salary as in effect
immediately prior to the Announcement Date;
(B) a reduction by the Company in your annual target bonus or maximum
bonus award opportunities as in effect immediately prior to the
Announcement Date;
(C) the Company's requiring you to be based at a location that is both
outside the same metropolitan area of, and in excess of 30 miles from, the
location of your principal office immediately prior to the Announcement
Date; and
(D) any purported termination by the Company of your employment that
is not effected pursuant to a Notice of Termination.
2.20. "Notice of Termination" shall mean a written notice which sets forth
the Date of Termination and, in reasonable detail, the facts and
circumstances claimed to provide a basis, if any, for termination of your
employment.
2.21. "Partial Change in Control" shall mean:
(A) a consolidation or merger of the Company or a Company Entity, or
other reorganization, with or into one or more entities which are not
Company Entities, as a result of which less than 60% of the outstanding
voting securities of the Resulting Corporation are, or are to be, owned by
former shareholders of the Company as determined immediately prior to
consummation of such transaction (excluding voting securities of the
Resulting Corporation owned, or to be owned, by such shareholders by reason
of their ownership prior to such transaction of securities of any entity
other than the Company) and as a result of which the Continuing Directors
constitute (i) more than 50% of the Board of Directors of the Resulting
Corporation or (ii) exactly 50% of the Board of Directors of the Resulting
Corporation if the transaction resulting in such event is a Permitted
Transaction; or
(B) the public announcement (which, for purposes of this definition,
shall include, without limitation, a report filed pursuant to Section 13(d)
of the Exchange Act) by the Company or any Person that a Person (other than
a Company Entity) has become the Beneficial Owner, directly or indirectly,
of securities of the Company representing 20% or more, but not more than
50%, of the combined voting power of the Company's then outstanding
securities if the transaction resulting in such ownership has been approved
in advance by the Continuing Directors.
2.22. "Permitted Transaction" shall mean a transaction in which, pursuant
to a written agreement between the Company and all Persons who have entered
into an agreement with the Company to effect a transaction described in
paragraph (A)of the definition of Partial Change in Control, it is agreed
that (w) the Chief Executive Officer of the Company immediately prior to
the consummation of such transaction shall be the Chief Executive Officer
of the
Resulting Corporation for not less than three years following consummation
of such transaction, (x) upon termination of service of any Continuing
Director for any reason, including upon death, disability or retirement,
prior to the expiration of such director's term during such three-year
period, the vacancy thereby created shall be filled by a nominee selected
solely by the Continuing Directors, (y) upon expiration of the term of any
such director during such three-year period, the nominee to succeed such
director shall be selected solely by the Continuing Directors and (z) the
parties will take other appropriate steps to ensure that the Board of
Directors of the Resulting Corporation will be evenly divided between
Continuing Directors and all directors designated by other parties to the
transaction during such three-year period.
2.23. "Person" shall have the meaning ascribed to such term as such term
is used in Sections 13(d) and 14(d) of the Exchange Act.
2.24. "Resulting Corporation" shall mean the surviving corporation in any
consolidation, merger or other reorganization to which the Company is a
party; provided, however, that if the surviving corporation in any such
transaction is a subsidiary of another corporation, then the Resulting
Corporation is the ultimate parent corporation of such surviving
corporation; and provided, further, that in the event of a consolidation,
merger or other reorganization to which a Company Entity (other than the
Company) is a party, then the Company shall be deemed the Resulting
Corporation.
2.25. "Termination of Employment" shall mean termination of your
employment (a) by the Company for any reason other than Cause or (b) by you
for Good Reason; but shall not include termination by reason of your death.
If Notice of Termination is given by you for Good Reason (Partial), and
prior to the Date of Termination the Company terminates your employment for
Cause, the termination shall be considered a termination by
the Company for Cause and shall not be considered a Termination of
Employment.
3. Termination Procedures.
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3.1. Notice of Termination. Any purported termination of your employment
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by the Company or you (including a Termination of Employment) (other than
by reason of your death) within 24 months following a Change in Control,
and any Anticipatory Termination by the Company or you, shall be
communicated by a Notice of Termination in accordance with Section 9
hereof. No purported termination by the Company of your employment in such
24-month period (or prior thereto in the event of an Anticipatory
Termination) shall be effective if it is not pursuant to a Notice of
Termination. Failure by you to provide Notice of Termination shall not
limit any of your rights under this Agreement except to the extent the
Company can demonstrate that it suffered actual damages by reason of such
failure.
3.2. Participant's Termination Rights. Your right to terminate your
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employment pursuant to the terms of this Agreement shall not be affected by
your incapacity due to physical or mental illness. Your continued
employment shall not constitute consent to, or a waiver of rights with
respect to, any circumstance constituting Good Reason pursuant to the terms
of this Agreement. Termination of your employment for Good Reason shall
constitute termination for Good Reason for all purposes of this Agreement,
notwithstanding that you may also thereby be deemed to have "retired" under
any applicable retirement programs of the Company.
4. Qualification for Severance Benefits. Except as otherwise provided in this
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Section 4, to qualify for a severance payment from the Company or the
Resulting Corporation under this Agreement, a Change in Control must
occur and you must (a) be an employee of the Company or its Affiliates
immediately prior to the time of such Change in Control (or, in the case of
an Anticipatory Termination, immediately prior to the Announcement Date),
(b) have a Termination of Employment that occurs within 24 months following
such Change in Control or have an Anticipatory Termination, and (c) execute
an effective general release of all claims against the Company and its
Affiliates in the form and manner prescribed by the Company.
Notwithstanding the foregoing, you shall be deemed to have a Termination of
Employment within 24 months following a Full Change in Control if the basis
for Termination of Employment is Good Reason (Full) and if the reason that
the Termination of Employment did not occur within such 24-month period is
that cash compensation for services rendered in any portion of a fiscal
year within 24 months following a Full Change in Control shall have been
determined more than 24 months following a Full Change in Control;
provided, that the Termination of Employment occurs within 10 days
following determination of cash compensation for such fiscal year or
portion thereof. In the event that a Partial Change in Control is followed
by a Full Change in Control, commencing on the date of the Full Change in
Control, provisions in this Agreement relating to a Full Change in Control
shall supersede provisions relating to a Partial Change in Control if you
are employed by the Company or its Affiliates on the date of the Full
Change in Control. You shall not qualify for a severance payment from the
Company or the Resulting Corporation under this Agreement if you have
announced in writing, prior to the date the Company provides Notice of
Termination to you, the intention to terminate employment or retire (other
than pursuant to a Termination of Employment), provided, in the case of
retirement, that any earlier termination by the Company or the Resulting
Corporation does not result in the diminution of retirement benefits that
you would have received if such retirement had occurred on your intended
retirement date. Further, you shall not qualify for a severance payment
from the Company or the Resulting Corporation under this Agreement if at
least 30 days prior to the
Announcement Date the Company has announced that the business, line of
business, unit, staff group or other identifiable business group, whether
or not a legal entity, or operations in any designated geographical area,
for which you are at such time employed will be divested, sold, downsized
or restructured by the Company and you are informed in writing, prior to
the occurrence of the Change in Control, that your employment will
terminate as a result of such divestiture, sale, downsizing or
restructuring; provided, that determinations and interpretations with
respect to this provision shall be in the sole discretion of the Company.
5. Compensation Upon Termination.
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5.1. Amounts. Upon qualification for severance benefits pursuant to this
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Agreement, you shall be entitled to the benefits, to be funded from the
general assets of the Company, provided below:
(A) your full base salary through the Date of Termination at the
rate in effect at the time Notice of Termination is given;
(B) an amount equal to three times the sum of (i) your annual base
salary in effect at the time Notice of Termination is given or immediately
prior to the date of the Change in Control, whichever is greater, plus (ii)
the average actual incentive pay for the three fiscal years preceding the
year in which the Announcement Date occurs, or, if you were not an employee
of the Company for such three-year period, the average actual incentive pay
for any prior full fiscal years, or, if you were not an employee of the
Company for any such full fiscal year, your annual target bonus potential
available at the time Notice of Termination is given or immediately prior
to the date of the Change in Control, whichever is greater;
(C) for a 36-month period after the Date of Termination, the Company
will arrange to provide you and your dependents (if applicable) with
welfare benefits (including, without limitation, medical, dental, life, and
individual disability insurance coverage), perquisites and other employee
benefits that provide substantially similar benefits, in terms of aggregate
monetary value, to you and your dependents (if applicable) at substantially
similar costs to you as the welfare benefits, perquisites and other
employee benefits (i) in effect immediately prior to the Change in Control
(or as in effect following the Change in Control, if greater), in the case
of a Full Change in Control, or (ii) that would have been provided to you
from time to time if you had not had a Termination of Employment, in the
case of a Partial Change in Control; but benefits otherwise receivable by
you pursuant to this clause (C) shall be discontinued if you obtain full-
time employment providing comparable welfare benefits during the 36-month
period following such termination;
(D) the full amount of any long-term cash incentive award for any plan
periods then in progress to the extent not provided for in such plan or
plans;
(E) the year-to-date pro-rata amount of any annual cash incentive
award for any plan as in effect immediately prior to the Change in Control
to the extent not provided for in such plan or plans;
(F) credit for five (5) additional years of service under section
1.2.2(c)(iii) of the First Bank System, Inc. Nonqualified Supplemental
Executive Retirement Plan (or any appropriate successor to such section
and/or plan) for purposes of determining the additional years of service
with which you will be credited in the formulation of your Accrued SERP
benefit in that plan;
(G) to the extent not otherwise provided in the Company's qualified or
non-qualified retirement plans, three (3) additional years of accruals
premised on the assumption that you had continued in service with the
Company and
had received remuneration in the amount determined in accordance with
Section 5.1(B) above; and
(H) individual outplacement counseling services.
5.2. Group Disability. The Company shall not be required to continue to
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provide group disability benefits following your Date of Termination other
than with respect to benefits to which you became entitled prior to the
Date of Termination and which are required to be paid following such Date
of Termination in accordance with the terms of applicable disability plans
or policies in effect prior to such Date of Termination.
5.3. Time and Form of Cash Payments. The cash payments provided for in
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Sections 5.1(A), (B), (D) and (E) above shall be made not later than 20
days following the Date of Termination; provided, however, that if the
amounts of such payments cannot be finally determined on or before such
day, the Company shall pay to you on such day an estimate as determined in
good faith by the Company of the minimum amount of such payments and shall
pay the remainder of such payments (together with interest from the date of
such estimated payment at the rate provided in Section 1274(b)(2)(B) of the
Code) as soon as the amount thereof can be determined but in no event later
than 45 days after the Date of Termination. In the event that the amount
of the estimated payment exceeds the amount subsequently determined to have
been due, such excess shall constitute a loan by the Company to you payable
no later than 30 days after demand by the Company (together with interest
from the date of such estimated payment at the rate provided in Section
1274(b)(2)(B) of the Code).
5.4. Legal Fees and Expenses. The Company shall also pay to you any legal
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fees and expenses incurred by you (i) as a result of successful litigation
against the Company for nonpayment of any benefit hereunder or (ii) in
connection
with any dispute with any Federal, state or local governmental agency with
respect to benefits claimed under this Agreement. If you utilize
arbitration to resolve any such dispute, the Company will pay any legal
fees and expenses incurred by you in connection therewith.
5.5. No Mitigation. You shall not be required to mitigate the amount of
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any payment provided for in this Section 5 by seeking other employment or
otherwise, nor shall the amount of any payment provided for in this Section
5 be reduced by any compensation earned by you as the result of employment
by another employer after the Date of Termination, or otherwise, except as
set forth in Section 5.1(C) hereof.
6. Additional Payments. In the event you become entitled to payments under
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Section 5 of this Agreement, the Company shall cause its independent
auditors promptly to review, at the Company's sole expense, the
applicability of Section 4999 of the Code to such payments. If such
auditors shall determine that any payment or distribution of any type by
the Company to you or for your benefit, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise (the "Total Payments"), would be subject to the excise tax
imposed by Section 4999 of the Code, or any interest or penalties with
respect to such excise tax (such excise tax, together with any such
interest and penalties, are collectively referred to as the "Excise Tax"),
then you shall be entitled to receive an additional cash payment (a "Gross-
Up Payment") within 30 days of such determination equal to an amount such
that after payment by you of all taxes (including any interest or penalties
imposed with respect to such taxes), including any Excise Tax, imposed upon
the Gross-Up Payment, you would retain an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Total Payments. For purposes of
the foregoing determination, your tax rate shall be deemed to be the
highest statutory marginal state and Federal tax rate (on a combined basis)
(including your share of F.I.C.A. and Medicare taxes) then in effect. If
no determination by the Company's auditors is made prior to the time a tax
return reflecting the Total Payments is required to be filed by you, you
will be entitled to receive a Gross-Up Payment calculated on the basis of
the Total Payments reported by you in such tax return, within 30 days of
the filing of such tax return. In all events, if any tax authority
determines that a greater Excise Tax should be imposed upon the Total
Payments than is determined by the Company's independent auditors or
reflected in your tax return pursuant to this Section 6, you shall be
entitled to receive the full Gross-Up Payment calculated on the basis of
the amount of Excise Tax determined to be payable by such tax authority
from the Company within 30 days of such determination.
7. Nonexclusivity of Rights. Nothing in this Agreement shall prevent or
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limit your continuing or future participation in any benefit, bonus,
incentive, retirement or other plan or program provided by the Company and
for which you may qualify, nor shall anything herein limit or reduce such
rights as you may have under any other agreement with, or plan, program,
policy or practice of, the Company. Amounts which are vested benefits or
which you are otherwise entitled to receive under any agreement with, or
plan, program, policy or practice of, the Company (including, without
limitation, the cash-out of unused vacation days upon termination of
employment) shall be payable in accordance with such agreement, plan,
program, policy or practice, except as explicitly modified by this
Agreement. Notwithstanding the foregoing, if you become entitled to
benefits under this Agreement, you shall not be entitled to receive
payments under any other severance pay plan or program sponsored or
maintained by the Company or any of its Affiliates.
8. Successors.
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(A) The Company will require the Resulting Corporation or any other
successor (whether direct or indirect, by purchase, merger, consolidation,
or
otherwise) to all or substantially all of the business and/or consolidated
assets of the Company and its subsidiaries to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken place.
Failure of the Company to obtain such assumption and agreement prior to the
effectiveness of any such succession shall entitle you to compensation from
the Company in the same amount and on the same terms as you would be
entitled under this Agreement if you met the qualification requirements set
forth in Section 4, except that for purposes of implementing the foregoing,
the date on which any such succession becomes effective shall be deemed the
Date of Termination, and Notice of Termination shall be deemed to have been
given on such date.
(B) This Agreement shall inure to the benefit of and be enforceable by
your personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees, and legatees. If you should die
while any amount would still be payable to you hereunder if you had
continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement, to your
devisee, legatee or other designee or, if there is no such designee, to
your estate or, if no estate, in accordance with applicable law.
9. Notice. For the purpose of this Agreement, notices and all other
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communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, postage prepaid, addressed to the other party as follows:
If to the Company, to:
First Bank System, Inc.
Attention: Corporate Secretary
First Bank Place
601 Second Avenue South
Minneapolis, Minnesota 55402
If to you, to:
[NAME]
First Bank System, Inc.
601 Second Avenue South
Minneapolis, MN 55402
Either party to this Agreement may change its address for purposes of this
Section 8 by giving 15 days' prior notice to the other party hereto.
10. Miscellaneous. No provision of this Agreement may be modified, waived or
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discharged unless such waiver, modification or discharge is agreed to in
writing and signed by you and such officer as may be specifically
designated by the Board. The validity, interpretation, construction, and
performance of this Agreement shall be governed by the laws of the State of
Minnesota.
11. Validity. The invalidity or unenforceability of any provision of this
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Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
12. Counterparts. This Agreement may be executed in several counterparts, each
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of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
13. Arbitration. If you so elect, any dispute or controversy arising under or
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in connection with this Agreement shall be settled exclusively by
arbitration in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's
award in any court having jurisdiction; provided, however, that you shall
be entitled to seek specific performance of your right to be paid until the
Date of Termination during the pendency of any dispute or controversy
arising under or in connection with
this Agreement. If you do not elect arbitration, you may pursue any and all
legal remedies available to you.
14. Effective Date. This Agreement shall become effective as of the date set
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forth above.
15. Employment. This Agreement does not constitute a contract of employment or
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impose on the Company any obligation to retain you as an employee, to
continue your current employment status or to change any employment
policies of the Company.
If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter which
will then constitute our agreement on this subject.
Sincerely,
FIRST BANK SYSTEM, INC.
By__________________________
Name:
Title:
Agreed to this ___ day
of _____________, 199___
By__________________________
Name:
Title: