EXHIBIT 2.2
ENTERPRISE FINANCIAL SERVICES CORP.
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT, is made by and between XXXXX X. XXXXXXX (the
"Executive") and ENTERPRISE FINANCIAL SERVICES CORP, a Delaware corporation (the
"Company"), effective as of July 1, 2002 (the "Effective Date").
WITNESSETH:
WHEREAS, Executive desires to be employed by the Company, and the
Company desires to employ Executive, on the terms, covenants and conditions
hereinafter set forth in this Agreement.
NOW, THEREFORE, for the reasons set forth above, and in consideration
of the mutual promises and agreements herein set forth, the Company and
Executive agree as follows:
1. EMPLOYMENT. Subject to the terms and conditions set forth in this
Agreement, the Company hereby employs Executive for the Contract Term as
hereafter defined. During the Contract Term, Executive shall serve as the
President and Chief Executive Officer of the Company and shall have such duties
and responsibilities as are customarily assigned to individuals serving in such
position and such other duties as the Board of Directors (the "Board") may from
time to time specify consistent with such corporate office and position.
Executive shall comply with all polices and procedures of the Company generally
applicable to executive employees of the Company and to the extent consistent
with the provisions of this Agreement. The duties and responsibilities Executive
is to perform hereunder shall be conducted primarily from the St. Louis,
Missouri metropolitan area where the principal offices of the Company are
located. Executive may be required from time to time to perform his duties
hereunder on an occasional basis at such other places as the Board shall
designate or as the interests or business opportunities of the Company may
require; provided, however, that without Executive's consent, the Executive
shall not be required to relocate his residence from the St. Louis, Missouri
metropolitan area. Executive hereby accepts such employment and agrees to serve
the Company in such capacities for the term of this Agreement.
2. TERM OF EMPLOYMENT. Except as otherwise provided herein, the term of
this Agreement shall be for three years commencing on the Effective Date and
ending on June 30, 2005 (the "Contract Term"). The Contract Term may be extended
by mutual written agreement of Executive and the Company upon such terms,
provisions and conditions which are mutually acceptable to Executive and the
Company. Notwithstanding any expiration of this Agreement at the end of the
Contract Term, to the extent that Executive remains an employee of the Company
thereafter, unless the parties otherwise agree in writing, (i) the obligations
of the Company under sections 4, 6 and 11 of this Agreement shall remain
applicable and (ii) the obligations of Executive under sections 7, 8 and 9 of
this Agreement shall remain applicable. The term during which Executive is an
employee of the Company, including any period of employment following the
Contract Term, is referred to as the "Employment Term."
3. DEVOTION TO DUTIES. Executive agrees that during the Employment Term
he will devote all of his skill, knowledge, commercial efforts and working time
to the conscientious and faithful performance of his duties and responsibilities
to the Company (except for (i) permitted vacation time and absence for sickness
or similar disability and (ii) to the extent that it does not interfere with the
performance of Executive's duties hereunder: (A) such reasonable time as may be
devoted to the fulfillment of Executive's civic and charitable activities and
(B) such reasonable time as may be necessary from time to time for personal
financial matters). Executive will use his best good faith efforts to promote
the success of the Company's business and will cooperate fully with the Board in
the advancement of the best interests of the Company. Executive will agree to
serve as a director of the Company, or as a director or officer of any of its
Subsidiaries or Affiliates, without additional compensation.
4. COMPENSATION OF EXECUTIVE.
4.1 BASE SALARY. During the Employment Term, the Company shall
pay to the Executive as compensation for the services to be performed
by the Executive a base salary of $300,000 per year (the "Base
Salary"). The Base Salary shall be payable in installments in
accordance with the Company's normal payroll practice and shall be
subject to such withholdings and other ordinary employee withholdings
as may be required by law. The Base Salary may be adjusted from time to
time in the sole discretion of the Board, but shall not be reduced
without the consent of Executive.
4.2 TARGETED BONUS. In addition to the compensation set forth
elsewhere in this Section 4, for each year or portion thereof during
the Employment Term and any extensions thereof, the Executive shall
qualify for a targeted annualized bonus ("Targeted Bonus") based upon
meeting established targeted goals such that with his Base Salary and
Targeted Bonus Executive will have the opportunity to earn at least
$600,000 per year. No later than the Company's January Board meeting,
the Company and Executive shall agree upon certain targeted financial
and operating goals ("Targets") for that calendar year which may
include Company specific goals such as consolidated return on equity,
asset quality and performance of the Company's wealth management
services. The established Targets shall be consistent with the
financial plan for the Company as adopted by the Company's Board.
Within 75 days after the end of each calendar year, the Board (or a
committee of the Board to which the Board has delegated such authority)
shall make a good faith determination as to the extent to which the
Targets have been met by the Company for the preceding calendar year.
If the Targets have been met, then Executive shall receive a Targeted
Bonus for such preceding year up to a maximum of $300,000 for calendar
2003 and in subsequent years such amounts as the Board may determine,
subject to the aforementioned condition that the sum of annual base
compensation plus Targeted Bonus for the year is at least $600,000. In
the event that the established Targets are exceeded, then Executive
shall be entitled to receive additional bonus amounts above the
Targeted Bonus pursuant to the previously determined formula applicable
to that year. If the Board (or such committee of the Board) determines
that the Targets have not been fully met, but minimum thresholds as may
be established by the Board (or such committee) have been met, the
Board (or such committee) shall make a good faith determination as to
the extent that the Targets have been met and determine the amount of
such Targeted Bonus to be awarded to the Executive based
proportionately
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upon the extent to which the Targets are determined to have been met.
Executive shall also be eligible to receive such other bonuses or
incentive payments as may be approved by the Board of Directors.
Without limiting the foregoing, Executive shall be entitled to receive
a draw against such annual Targeted Bonus at the rate of $15,000 per
month (subject to such withholdings as may be required by law) and the
Company agrees that for all periods ending on or prior to December 31,
2002, no part of such draw shall be refundable regardless of the extent
to which the Targets have been achieved by the Company. After December
31, 2002, the Board may from time to time eliminate, reduce or increase
the draw against the annual Targeted Bonus based upon the Board's
determination in its sole discretion as to the progress or lack of
progress in achieving the Targets for the applicable fiscal year of the
Company.
4.3 BENEFITS. Executive shall be entitled to participate,
during the Employment Term, in all regular employee benefit and
deferred compensation plans established by each of Enterprise Bank (to
the extent such participation is not restricted by the Internal Revenue
Code of 1986 (the "Code")) and the Company, including, without
limitation, any savings and profit sharing plan, incentive stock plan,
dental and medical plans, life insurance and disability insurance, such
participation to be as provided in said employee benefit plans in
accordance with the terms and conditions thereof as in effect from time
to time and subject to any applicable waiting period. Executive shall
also be entitled to four weeks of paid vacation during each year of the
Employment Term, provided that any vacation not used in any year shall
be forfeited and not carried over to any subsequent year. In addition
to the foregoing benefits, the Company agrees (i) to provide during the
Employment Term aggregate term insurance on Executive's life equal to
$1,000,000 payable to a beneficiary designated by Executive, provided
that Executive qualifies for such coverage at normal published premium
rates, and (ii) to provide (or reimburse Executive with respect to)
supplemental disability income insurance such that the total combined
disability income coverage available to employee from the Company and
under policies maintained by Executive on which the Company reimburses
Executive for the premiums is equal to $25,000 per month until
Executive's 65th birthday. Executive agrees that the cost of the
foregoing supplemental insurance benefits shall constitute taxable
benefits and be subject to such withholding taxes as may be required by
law.
4.4 OFFICE AND SECRETARY. Executive will have a private
office, secretarial assistance, administrative support, and such other
facilities and services as the Company deems necessary or appropriate
for the performance of the Executive's duties under this Agreement.
4.5 REIMBURSEMENT OF EXPENSES. The Company will provide for
the payment or reimbursement of all reasonable and necessary expenses
incurred by the Executive in connection with the performance of his
duties under this Agreement in accordance with the Company's expense
reimbursement policy, as such may change from time to time. Without
limiting the foregoing, the Company further agrees during the
Employment Term (i) to reimburse Executive for monthly automobile
expense by means of a $500 per month automobile allowance; (ii) to
reimburse Executive for dues and assessments in respect of club
memberships maintained by Executive up to a maximum
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of $7,500 per year; and (iii) that all air travel required of Executive
shall be at no less than "Business Class" or its equivalent, if
available. In addition, the Executive shall be entitled to receive
reimbursement for up to $5,000 in legal expenses incurred in connection
with the negotiation and execution of this Agreement.
4.6 STOCK OPTIONS AND LONG-TERM INCENTIVES. Effective as of
the Effective Date, Executive was granted ten-year non-qualified
options to acquire 82,905 shares of the common stock of the Company at
a per-share exercise price of $9.30 pursuant to the terms of the
Company's 2002 Stock Incentive Plan. Such options shall vest and become
exercisable at the rate of 27,635 shares on June 30 of each of 2003,
2004 and 2005, provided that Executive remains continuously employed by
the Company through such dates. Executive shall also be eligible for
additional option grants annually as determined by the Board, under the
terms of the Company's 2002 Stock Incentive Plan as adopted and/or
amended by the Company from time to time. In the event that the Company
adopts a long-term incentive compensation program, either to supplement
or replace option awards, Executive shall be entitled to participate
therein on a similar basis.
5. TERMINATION OF EMPLOYMENT.
5.1 TERMINATION FOR CAUSE. "Termination for Cause", as
hereinafter defined, may be effected by the Company at any time during
the term of this Agreement by written notification to Executive,
specifying in detail the basis for the Termination for Cause. Upon
Termination for Cause, Executive shall immediately be paid all accrued
salary, bonus compensation to the extent earned, vested deferred
compensation, if any, (other than pension plan or profit sharing plan
benefits which will be paid in accordance with the terms of the
applicable plan), any benefits under any plans of the Company in which
the Executive is a participant to the full extent of the Executive's
rights under such plans, accrued vacation pay for the year in which
termination occurs, and any appropriate business expenses incurred by
Executive reimbursable by the Company in connection with his duties
hereunder, all to the date of termination, but Executive shall not be
paid any other compensation or reimbursement of any kind, including
without limitation, severance compensation. "Termination for Cause"
shall mean termination by the Company of Executive's employment by the
Company by reason of (a) an order of any federal or state regulatory
authority having jurisdiction over the Company, (b) the willful failure
of Executive substantially to perform his duties hereunder (other than
any such failure due to Executive's physical or mental illness); (c) a
willful breach by Executive of any material provision of this Agreement
or of any other written agreement with the Company or any of its
Affiliates; (d) Executive's commission of a crime that constitutes a
felony or other crime of moral turpitude or criminal fraud; or (e)
chemical or alcohol dependency which materially and adversely affects
Executive's performance of his duties under this Agreement; (f) any act
of disloyalty or breach of responsibilities to the Company by the
Executive which is intended by the Executive to cause material harm to
the Company; (e) misappropriation (or attempted misappropriation) of
any of the Company's funds or property. If subsequent to Executive's
termination of employment hereunder for other than Cause it is
determined in good faith by the Company that Executive's employment
could have been terminated for Cause hereunder, Executive's
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employment shall be deemed to have been terminated for Cause
retroactively to the date the events giving rise to Cause occurred.
5.2 TERMINATION OTHER THAN FOR CAUSE. Notwithstanding any
other provisions of this Agreement, the Company may effect a
"Termination Other Than For Cause", as hereinafter defined, at any time
upon giving written notice to Executive of such termination. Upon any
Termination Other Than for Cause, subject to the effectiveness of
Executive's execution of a release and waiver of all claims with
respect to Executive's employment against the Company its Affiliates
and their respective officers and directors in a form reasonably
satisfactory to the Company other than rights under this Section 5.2
and subject to Executive's compliance with the terms and conditions
contained in this Agreement, Executive shall within 30 days after such
termination be paid all accrued salary, bonus compensation to the
extent earned, vested deferred compensation (other than pension plan or
profit sharing plan benefits which will be paid in accordance with the
applicable plan), accrued vacation pay for the year in which
termination occurs, any benefits under any plans of the Company in
which Executive is a participant to the full extent of Executive's
rights under such plans, and any appropriate business expenses incurred
by Executive in connection with his duties hereunder, all to the date
of termination, and all severance compensation provided in subsection
6.2. In addition, subject to the conditions set forth above, upon such
termination of employment, all stock options granted to Executive shall
become fully vested and exercisable and all restricted common stock
granted to Executive shall fully vest and become transferable.
"Termination Other Than for Cause" shall mean any termination by the
Company of Executive's employment with the Company other than a
termination pursuant to subsection 5.1, 5.3, 5.4, 5.5 or 5.6, or
termination by Executive of Executive's employment with the Company by
reason of (i) the Company's material breach of this Agreement, (ii) the
assignment of Executive without his consent to a position,
responsibilities or duties of a materially lesser status or degree of
responsibility than his position, responsibilities or duties as of the
Effective Date, (iii) the requirement by the Company that Executive be
based anywhere other than the St. Louis, Missouri metropolitan area,
without Executive's consent or (iv) the failure of Executive to be
reelected to the Board by its stockholders or the failure of the Board
to re-nominate him for reelection without Executive's consent.
5.3 TERMINATION BY REASON OF DISABILITY. If, during the term
of this Agreement, the Executive, in the reasonable judgment of the
Board of Directors, (i) has failed to perform his duties under this
Agreement on account of illness or physical or mental incapacity, (ii)
such illness or incapacity continues for a period of more than 90
consecutive days, or 90 days during any 180 day period, and (iii)
Executive is entitled to receive disability income benefit payments
under the disability insurance policy maintained by the Company
pursuant to Section 4.3 of this Agreement, the Company shall have the
right to terminate Executive's employment hereunder by written
notification to Executive and payment to Executive of all accrued
salary, bonus compensation to the extent earned, vested deferred
compensation, if any, (other than pension plan or profit sharing plan
benefits which will be paid in accordance with the applicable plans),
accrued vacation pay for the year in which termination occurs, any
benefits under any plans of the Company in which Executive is a
participant to the full
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extent of Executive's rights under such plans, and any appropriate
business expenses incurred by Executive in connection with his duties
hereunder, all to the date of termination, but Executive shall not be
paid any other compensation or reimbursement of any kind, including
without limitation, severance compensation.
5.4 DEATH. In the event of Executive's death during the term
of this Agreement, Executive's employment shall be deemed to have
terminated as of the last day of the month during which his death
occurs and the Company shall pay to his estate or such beneficiaries as
Executive may from time to time designate all accrued salary, bonus
compensation to the extent earned, vested deferred compensation (other
than pension plan or profit sharing plan benefits which will be paid in
accordance with the applicable plan), any benefits under any plans of
the Company in which Executive is a participant to the full extent of
Executive's rights under such plans, accrued vacation pay for the year
in which termination occurs, and any appropriate business expenses
incurred by Executive in connection with his duties hereunder, all to
the date of termination, but Executive's estate shall not be paid any
other compensation or reimbursement of any kind, including without
limitation, severance compensation.
5.5 VOLUNTARY TERMINATION. In the event of a "Voluntary
Termination," as hereinafter defined, provided that the Executive
provides the Company with at least 90 days notice of such termination
(which notice and any requirement for service may be waived or
shortened by the Company), the Company shall within 30 days after such
termination pay all accrued salary, bonus compensation to the extent
earned, vested deferred compensation, if any, (other than pension plan
or profit sharing plan benefits which will be paid in accordance with
the applicable plans), any benefits under any plans of the Company in
which Executive is a participant to the full extent of Executive's
rights under such plans, accrued vacation pay for the year in which
termination occurs, and any appropriate business expenses incurred by
Executive in connection with his duties hereunder, all to the date of
termination, but no other compensation or reimbursement of any kind,
including without limitation, severance compensation. "Voluntary
Termination" shall mean termination by Executive of Executive's
employment other than (i) constructive termination as described in
paragraphs (i) through (ii) of subsection 5.2, (ii) termination by
reason of Executive's disability as described in subsection 5.3, (iii)
termination by reason of Executive's death as described in subsection
5.4, and (iv) Termination Upon a Change in Control as described in
subsection 5.6.
5.6 TERMINATION UPON A CHANGE IN CONTROL. In the event of a
"Termination Upon a Change in Control," as hereinafter defined,
Executive shall immediately be paid all accrued salary, bonus
compensation to the extent earned, vested deferred compensation, if
any, (other than pension plan or profit sharing plan benefits which
will be paid in accordance with the applicable plans), any benefits
under any plans of the Company in which Executive is a participant to
the full extent of Executive's rights under such plans, vacation pay
for the year in which termination occurs, and any appropriate business
expenses incurred by Executive in connection with his duties hereunder,
all to the date of termination, and all severance compensation provided
in subsection 6.1. "Termination Upon a Change in Control" shall mean a
termination by the Company (other than a Termination for Cause) or by
Executive, in either case within one year
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following a "Change in Control" as hereinafter defined. "Change in
Control" shall mean the date on which any of the following has
occurred:
(a) any individual, entity or group (a "Person"),
other than one or more of the Company's directors on the
Effective Date of this Agreement or any Person that any such
director controls, becomes the beneficial owner of 50% or more
of the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the
election of directors of the Company (the "Company Outstanding
Voting Securities");
(b) any Person becomes the beneficial owner of 50% or
more of the combined voting power of the then outstanding
voting securities of Enterprise Bank entitled to vote
generally in the election of directors of Enterprise Bank
("Bank Outstanding Voting Securities");
(c) consummation of a reorganization, merger or
consolidation (a "Business Combination") of the Company,
unless, in each case, following such Business Combination (i)
all or substantially all of the Persons who were the
beneficial owners, respectively, of the Company Outstanding
Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more
than a majority of the combined voting power of the then
outstanding voting securities entitled to vote generally in
the election of directors of the company resulting from such
Business Combination, (ii) no Person (excluding any company
resulting from such Business Combination) beneficially owns,
directly or indirectly, 50% or more of the combined voting
power of the then outstanding voting securities entitled to
vote generally in the election of directors of the company
resulting from such Business Combination except to the extent
such ownership existed prior to the Business Combination, and
(iii) at least a majority of the members of the Board of
Directors of the company resulting from the Business
Combination are Continuing Directors (as hereinafter defined)
at the time of the execution of the definitive agreement, or
the action of the Board, providing for such Business
Combination;
(d) consummation of the sale, other than in the
ordinary course of business, of more than 50% of the combined
assets of the Company and its subsidiaries in a transaction or
series of related transactions during the course of any
twelve-month period;
(e) the date on which Continuing Directors (as
hereinafter defined) cease for any reason to constitute at
least a majority of the Board of Directors of the Company; or
(f) the failure of Executive to be reelected to the
Board by its stockholders or the failure of the Board to
re-nominate him for reelection without Executive's consent.
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As used in this Section 5.6, the definitions of the terms "beneficial
owner" and "group" shall have the meanings ascribed to those terms in
Rule 13(d)(3) under the Securities Exchange Act of 1934. As used in
this Section 5.6, the term "Continuing Directors" shall mean, as of any
date of determination, (i) any member of the Board of Directors on the
Effective Date of this Agreement, (ii) any person who has been a member
of the Board of Directors for the two years immediately preceding such
date of determination, or (iii) any person who was nominated for
election or elected to the Board of Directors with the affirmative vote
of the greater of (A) a majority of the Continuing Directors who were
members of the Board of Directors at the time of such nomination or
election or (B) at least four Continuing Directors but excluding, for
purposes of this clause (iii), any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies by or on behalf
of a Person other than the Board of Directors of the Company. "Control"
means the direct or indirect ownership of voting securities
constituting more than fifty percent (50%) of the issued voting
securities of a corporation.
5.7 RESIGNATION UPON TERMINATION. Effective upon any
termination under this Section 5 or otherwise, Executive shall
automatically and without taking any further actions be deemed to have
resigned from all positions then held by him with the Company and all
of its Affiliates.
6. SEVERANCE COMPENSATION
6.1 TERMINATION UPON CHANGE IN CONTROL. In the event
Executive's employment is terminated in a Termination Upon a Change in
Control, Executive shall be paid the following as severance
compensation:
(a) For two (2) years following such termination of
employment, an amount (payable on the dates specified in
subsection 4.1 except as otherwise provided herein) equal to
the Base Salary at the rate payable at the time of such
termination plus (i) any accrued and unpaid Bonus due
Executive under paragraph 4.3 of this Agreement and (ii) an
amount equal to the Targeted Bonuses due (based on the Base
Salary then in effect) for the year in which such termination
of employment occurs (determined as though all requisite
targets were fully and completely achieved). Notwithstanding
any provision in this paragraph (a) to the contrary, Executive
may, in Executive's sole discretion, by delivery of a notice
to the Company within 30 days following a Termination Upon a
Change in Control, elect to receive from the Company a lump
sum severance payment by bank cashier's check equal to the
present value of the flow of cash payments that would
otherwise be paid to Executive pursuant to this paragraph (a).
Such present value shall be determined as of the date of
delivery of the notice of election by Executive and shall be
based on a discount rate equal to the prime rate, as reported
in the Wall Street Journal, or similar publication, on the
date of delivery of the election notice. If Executive elects
to receive a lump sum severance payment, the Company shall
make such payment to Executive within 30 days
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following the date on which Executive notifies the Company of
Executive's election.
(b) In the event that Executive is not otherwise
entitled to fully exercise all awards granted to him under any
stock option plan maintained by the Company and any such plan
does not otherwise provide for acceleration of exercisability
upon the occurrence of the Change in Control described herein,
such awards shall become immediately exercisable upon a Change
in Control.
(c) All restricted stock granted to Executive will
vest and become transferable.
(d) Executive shall continue to accrue retirement
benefits and shall continue to enjoy any benefits under any
plans of the Company in which Executive is a participant to
the full extent of Executive's rights under such plans,
including any perquisites provided under this Agreement,
through the remainder of the Employment Term; provided,
however, that the benefits under any such plans of the Company
in which Executive is a participant, including any such
perquisites, shall cease upon Executive's obtaining other
employment. If necessary to provide such benefits to
Executive, the Company shall, at its election, either: (i)
amend its employee benefit plans to provide the benefits
described in this paragraph (c), to the extent that such is
permissible under the nondiscrimination requirements and other
provisions of the Internal Revenue Code of 1986 (the "Code")
and the provisions of Executive Retirement Income Security Act
of 1974, or (ii) provide separate benefit arrangements or cash
payments so that Executive receives amounts equivalent
thereto, net of tax consequences.
6.2 TERMINATION OTHER THAN FOR CAUSE. In the event Executive's
employment is terminated in a Termination Other Than for Cause,
Executive shall be paid as severance compensation his Base Salary, at
the rate payable at the time of such termination, through the remaining
period of the Contract Term or the one year period commencing on the
effective date of such termination (whichever period is shorter) plus
(i) any accrued and unpaid Bonus due Executive under paragraph 4.3 of
this Agreement and (ii) an amount equal to the Targeted Bonuses due
(based on the Base Salary then in effect) for the year in which such
termination of employment as though all requisite targets were fully
and completely achieved. Notwithstanding any provision in this
subsection 6.2 to the contrary, the Company may, in the Company's sole
discretion, by delivery of a notice to Executive within 30 days
following a Termination Other Than for Cause, elect to remit to
Executive a lump sum severance payment by bank cashier's check equal to
the present value of the flow of cash payments that would otherwise be
paid to Executive pursuant to this subsection 6.2. Such present value
shall be determined as of the date of delivery of the notice of
election by the Company and shall be based on a discount rate equal to
the prime rate, as reported in The Wall Street Journal, on the date of
delivery of the election notice. If the Company elects to remit a lump
sum severance payment, the Company shall make such payment to Executive
within 30 days following the date on which the Company notifies
Executive of its election. In the event that
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Executive is not otherwise entitled to fully exercise all awards
granted to him under the Company's Incentive Stock Plan, and the
Incentive Stock Plan does not otherwise provide for acceleration of
exercisability upon the occurrence of a Termination Other Than for
Cause described herein, such awards shall become immediately
exercisable upon a Termination Other Than for Cause.
6.3 TERMINATION UPON ANY OTHER EVENT. In the event of a
Voluntary Termination, Termination For Cause, termination by reason of
Executive's disability pursuant to subsection 5.5 or termination by
reason of Executive's death pursuant to subsection 5.6, Executive or
his estate shall not be paid any severance compensation.
7. CONFIDENTIALITY. Executive agrees to hold in strict confidence all
non-public information concerning any matters affecting or relating to the
business of the Company, including without limiting the generality of the
foregoing non-public information concerning its manner of operation, business or
other plans, data bases, marketing programs, protocols, processes, computer
programs, client lists, marketing information and analyses, operating policies
or manuals or other data. Executive agrees that he will not, directly or
indirectly, use any such information for the benefit of others than the Company
or disclose or communicate any of such information in any manner whatsoever
other than to the directors, officers, employees, agents and representatives of
the Company who need to know such information, who shall be informed by
Executive of the confidential nature of such information and directed by
Executive to treat such information confidentially. Upon the Company's request,
Executive shall return all information furnished to him related to the business
of the Company without retaining any copies in electronic or other form. The
above limitations on use and disclosure shall not apply to information which
Executive can demonstrate: (a) was known to Executive before receipt thereof
from the Company; (b) is learned by Executive from a third party entitled to
disclose it; or (c) becomes known publicly other than through Executive; (c) is
disclosed by Executive upon authority of the Board or any committee of the
Board; (d) is disclosed pursuant to any legal requirement or (e) is disclosed
pursuant to any agreement to which the Company or any of its Subsidiaries or
Affiliates is a party. The parties hereto stipulate that all such information is
material and confidential and gravely affects the effective and successful
conduct of the business of the Company and the Company's goodwill, and that any
breach of the terms of this Section 7 shall be a material breach of this
Agreement. The terms of this Section 7 shall survive and remain in effect
following any termination of this Agreement.
8. USE OF PROPRIETARY INFORMATION. Executive recognizes that the
Company possesses a proprietary interest in all of the information described in
Section 7 and has the exclusive right and privilege to use, protect by
copyright, patent or trademark, manufacture or otherwise exploit the processes,
ideas and concepts described therein to the exclusion of Executive, except as
otherwise agreed between the Company and Executive in writing. Executive
expressly agrees that any products, inventions, discoveries or improvements made
by Executive, his agents or affiliates, during the term of this Agreement, based
on or arising out of the information described in Section 7 shall be the
property of and inure to the exclusive benefit of the Company. Executive further
agrees that any and all products, inventions, discoveries or improvements
developed by Executive (whether or not able to be protected by copyright, patent
or trademark) in the scope of his employment, or involving the use of the
Company's time,
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materials or other resources, shall be promptly disclosed to the Company and
shall become the exclusive property of the Company.
9. NON-COMPETITION AGREEMENT.
9.1 NON-COMPETITION. Executive agrees that, during the
Employment Term and for a period of one year following any termination
of such employment, Executive shall not, without the prior written
consent of the Company, directly or indirectly, own, manage, operate,
control, be connected with as an officer, employee, partner, consultant
or otherwise, or otherwise engage or participate in (except as an
employee of the Company, or Affiliate of it) any corporation or other
business entity engaged in the operation, ownership or management of a
bank, trust company or financial services business within the
Metropolitan Statistical Areas of St. Louis, Kansas City or any other
city in which the Company or any of its Affiliates has an office at the
time of such termination. Notwithstanding the foregoing, the ownership
by Executive of less than 1% of any class of the outstanding capital
stock of any corporation conducting such a competitive business which
is regularly traded on a national securities exchange or in the
over-the-counter market shall not be a violation of the foregoing
covenant.
9.2 NON-SOLICITATION. During the period of actual employment
and, in addition, the period, if any, during which Executive shall be
entitled to severance compensation pursuant to Section 6
(notwithstanding an election by Executive to receive a lump sum
severance payment for such period), Executive shall not, except on
behalf of or with the prior written consent of the Company, directly or
indirectly, entice or induce, or attempt to entice or induce, any
employee of the Company to leave such employ, or employ any such person
in any business similar to or in competition with that of the Company.
Executive hereby acknowledges and agrees that the provisions set forth
in this subsection 9.2 constitute a reasonable restriction on his
ability to compete with the Company.
9.3 SAVING PROVISION. The parties hereto agree that, in the
event a court of competent jurisdiction shall determine that the
geographical or durational elements of this covenant are unenforceable,
such determination shall not render the entire covenant unenforceable.
Rather, the excessive aspects of the covenant shall be reduced to the
threshold which is enforceable, and the remaining aspects shall not be
affected thereby.
9.4 EQUITABLE RELIEF. Executive acknowledges that the extent
of damages to the Company from a breach of Sections 7, 8 and 9 of this
Agreement would not be readily quantifiable or ascertainable, that
monetary damages would be inadequate to make the Company whole in case
of such a breach, and that there is not and would not be an adequate
remedy at law for such a breach. Therefore, Executive specifically
agrees that the Company is entitled to injunctive or other equitable
relief (without any requirement to post any bond or other security)
from a breach of Sections 7, 8 and 9 of this Agreement, and hereby
waives and covenants not to assert against a prayer for such relief
that there exists an adequate remedy at law, in monetary damages or
otherwise.
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10. ASSIGNMENT. This Agreement shall not be assignable by
Executive and shall not be assignable by the Company except by
operation of law or to a successor entity acquiring all or
substantially all the Company's business or assets. No such assignment
shall affect any determination of whether such assignment involves a
Change of Control for purposes of this Agreement. In the event of any
assignment permitted hereby, the duties and responsibilities of
Executive performed for the assignee shall not, without the written
consent of Executive, be materially increased, altered or diminished in
a manner inconsistent with Executive's duties and responsibilities
hereunder for the Company.
11. INDEMNIFICATION. The Company shall indemnify the Executive
to the full extent provided for in the Bylaws of the Company, and no
amendment of such Bylaws shall diminish the Company's obligation to
indemnify the Executive pursuant to this Agreement.
12. ENTIRE AGREEMENT. This Agreement and any agreements
entered into after the date hereof under any of the Company's benefit
plans or compensation programs as described in Section 4 contain the
complete agreement concerning the employment arrangement between the
parties, including without limitation severance or termination pay, and
shall, as of the Effective Date, supersede all other agreements or
arrangements between the parties with regard to the subject matter
hereof.
13. BINDING AGREEMENT. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
heirs, legal representatives, successors and assigns. The obligations
of the Company under this Agreement shall not be terminated by reason
of any liquidation, dissolution, bankruptcy, cessation of business or
similar event relating to the Company. This Agreement shall not be
terminated by reason of any merger, consolidation or reorganization of
the Company, but shall be binding upon and inure to the benefit of the
surviving or resulting entity.
14. MODIFICATION. No waiver or modification of this Agreement
or of any covenant, condition, or limitation herein contained shall be
valid unless authorized by the Board and reduced to in writing and duly
executed by the party to be charged therewith and no evidence of any
waiver or modification shall be offered or received in evidence of any
proceeding, arbitration, or litigation between the parties hereto
arising out of or affecting this Agreement, or the rights or
obligations of the parties thereunder, unless such waiver or
modification is in writing, duly executed as aforesaid.
15. SEVERABILITY. All agreements and covenants contained
herein are severable, and in the event any of them shall be held to be
invalid or unenforceable by any court of competent jurisdiction, this
Agreement shall be interpreted as if such invalid agreements or
covenants were not contained herein.
16. MANNER OF GIVING NOTICE. All notices, requests and demands
to or upon the respective parties hereto shall be sent by hand,
certified mail, overnight air courier service, in each case with all
applicable charges paid or otherwise provided for, addressed as
follows, or to such other address as may hereafter be designated in
writing by the respective parties hereto:
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To Company: To Executive at his current
Enterprise Financial Services Corp residential address on file with
150 North Meramec the Company.
Xxxxxxx, Xxxxxxxx 00000
Attention: Chairman of the Board
and Corporate Secretary
Such notices, requests and demands shall be deemed to have been given
or made on the date of delivery if delivered by hand or by telecopy and on the
next following date if sent by mail or by air courier service.
17. REMEDIES. In the event of a breach of this Agreement, the
non-breaching party shall be entitled to such legal and equitable relief as may
be provided by law, and shall further be entitled to recover all costs and
expenses, including reasonable attorneys' fees, incurred in enforcing the
non-breaching party's rights hereunder.
18. HEADINGS. The headings have been inserted for convenience only and
shall not be deemed to limit or otherwise affect any of the provisions of this
Agreement.
19. CHOICE OF LAW. It is the intention of the parties hereto that this
Agreement and the performance hereunder be construed in accordance with, under
and pursuant to the laws of the State of Missouri without regard to the
jurisdiction in which any action or special proceeding may be instituted.
20. TAXES. The company may withhold from any payments made under this
Agreement all applicable taxes, including but not limited to income, employment
and social insurance taxes, as shall be required by law.
21. VOLUNTARY AGREEMENT; NO CONFLICTS. Executive hereby represents and
warrants to the Company that he is legally free to accept and perform his
employment with the Company, that he has no obligation to any other person or
entity that would affect or conflict with any of Executive's obligations
pursuant to such employment, and that the complete performance of the
obligations pursuant to Executive's employment will not violate any order or
decree of any governmental or judicial body or contract by which Executive is
bound. The Company will not request or require, and Executive agrees not to use,
in the course of Executive's employment with the Company, any information
obtained in Executive's employment with any previous employer to the extent that
such use would violate any contract by which Executive is bound or any decision,
law, regulation, order or decree of any governmental or judicial body.
22. CERTAIN DEFINITIONS. As used herein, the following definitions
shall apply:
"Affiliate" with respect to any person, means any other Person that,
directly or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with the first Person, including but
not limited to a Subsidiary of the first Person, a Person of which the first
Person is a Subsidiary, or another Subsidiary of a Person of which the first
Person is also a Subsidiary.
"Control" With respect to any Person, means the possession, directly or
indirectly, severally or jointly, of the power to direct or cause the direction
of the management policies of
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such Person, whether through the ownership of voting securities, by contract or
credit arrangement, as trustee or executor, or otherwise.
"Person" Any natural person, firm, partnership, limited liability
company, association, corporation, company, trust, business trust, governmental
authority or other entity.
"Subsidiary" With respect to any Person, each corporation or other
Person in which the first Person owns or Controls, directly or indirectly,
capital stock or other ownership interests representing 50% or more of the
combined voting power of the outstanding voting stock or other ownership
interests of such corporation or other Person.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first stated above.
ENTERPRISE FINANCIAL SERVICES CORP
By:
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Title:
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XXXXX X. XXXXXXX
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