Exhibit 10.15
SEPARATION AGREEMENT
This Separation Agreement (the "Agreement") is made as of the 30/th/ day of
September, 2002 by and between ENTERPRISE FINANCIAL SERVICES CORP. (formerly
known as Enterbank Holdings, Inc.), a Delaware corporation (the "Company") and
FRED ELLER (the "Executive").
RECITALS:
A. The Company has employed the Executive to perform such executive and
managerial duties as have from time to time been delegated to him under the
terms of a Key Executive Employment Agreement made and entered into as of
September 1, 2000 by and between Enterbank Holdings, Inc. and the Executive (the
"Employment Agreement").
B. The Executive desires as of September 30, 2002 to voluntarily leave
his employment with the Company to pursue other business opportunities and the
Company is willing to permit the Executive to do so, subject to the terms of
this Agreement.
C. The Company and the Executive have reached certain mutual
understandings regarding the terms and conditions of the Executive's voluntary
withdrawal from his employment with the Company, as set forth in this Agreement.
Those understandings include, but are not limited to, modifications to the
non-competition and other restrictive covenants and conditions contained in the
Employment Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for such other and further consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Employment Status. The Executive will voluntarily resign from, and his
last day of employment with, the Company will be September 30, 2002 (the
"Effective Date"). The Executive will be paid his base salary through the
Effective Date in accordance with the Company's normal payroll practices. The
Executive hereby resigns from his positions as President and Chief Executive
Officer of the Company and any other positions he may hold as an officer of the
Company as of the Effective Date. The Executive shall execute such further
documents as the Company may require to evidence such resignations. The
Executive shall retain his position as a director of the Company from and after
the Effective Date for as long as he may be elected as a director of the Company
by its shareholders in accordance with the provisions of the Company's articles
of incorporation and bylaws for the election of directors.
2. Non-Compete Payments. Notwithstanding the provisions of Section 4.a.v.
of the Employment Agreement regarding the voluntary resignation by the Executive
of his employment with the Company, and provided the Executive complies with all
his
obligations under this Agreement, the Company will make the following payments
(collectively called the "Non-Compete Payments") to the Executive:
(a) On October 1, 2002, the lump sum of Two Hundred Thousand Dollars
($200,000.00).
(b) On January 15, 2003, the lump sum of One Hundred Sixty Thousand
Dollars ($160,000.00).
(c) Commencing on January 31, 2004, and continuing on the last day of
each month thereafter through September 30, 2005, the sum of Fifteen Thousand
Dollars ($15,000.00).
Except for the foregoing Non-Compete Payments, any fees for acting as a director
of the Company and any other payments specifically set forth in this Agreement,
the Executive shall not be entitled to receive any other compensation or other
employee benefits from the Company, including, but not limited to, those set
forth in the Employment Agreement, from and after the Effective Date. In the
event of the death of the Executive during the time any of the foregoing
payments are being made hereunder, all such payments shall immediately cease on
and as of the date of the Executive's death and neither the Executive nor his
estate or anyone claiming by or through the Executive shall have any claim for
any of such payments that are to be made on or after the date of the Executive's
death.
3. Health Benefits. The Executive's health coverage under the Company's
group plan will terminate on the Effective Date. From and after the Effective
Date, the Company will offer the Executive and qualifying dependents the
benefits to which the Executive is entitled under the Consolidated Omnibus
Budget Reconciliation Act of 1985 ("COBRA"). As long as the Executive has not
breached any of the provisions of this Agreement, the Company shall pay the
monthly premium for the Executive's health care coverage under COBRA for the
eighteen (18) month period commencing as of the Effective Date; provided,
however, the Company's obligation to pay such monthly premium shall not exceed
Five Hundred Dollars ($500.00) in any month. In the event such monthly premium
exceeds Five Hundred Dollars ($500.00) in any month, then the Executive shall be
responsible for paying such excess amount. The Company shall have the option,
but not the obligation, to pay such excess amount and offset such amount against
the payments to be paid to the Executive under Section 2, above.
4. Amendment, Incorporation and Termination of Employment Agreement. The
parties hereby acknowledge and agree that Paragraph 8 of the Employment
Agreement shall be amended as follows: the "restricted period" as defined
therein shall be changed from two (2) years to three (3) years, and any
reference throughout Paragraph 8 of the Employment Agreement to two (2) years
shall hereby be amended to three (3) years. The Employment Agreement shall be
terminated as of the Effective Date with the exception of the provisions of the
Employment Agreement in Paragraph 5 (Company Documents), Paragraph 6
(Non-Disclosure of Information), Paragraph 7 (Subsequent
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Employment), Paragraph 8, as amended pursuant to the preceding sentence (Non-
Competition), Paragraph 9 (Non-Disparagement) and Paragraph 10 (Remedies), which
provisions shall remain in full force and effect, shall survive the termination
of this Agreement and are hereby affirmed and ratified and made a part of this
Agreement by this reference.
5. Miscellaneous.
(a) Cooperation. Executive agrees to cooperate fully with the Company
and any Affiliate (as hereafter defined) in its defense of or other
participation in any administrative, judicial or other proceeding arising from
any charge, complaint or other action that has been or may be filed. "Affiliate"
shall mean any person which is controlled by the Company, either directly or
through use of some subsidiary corporations or Affiliates, or is under common
control with the Company. "Control" or "controlled" means the direct or indirect
ownership of fifty percent (50%) or more of a person or entity.
(b) Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties and their heirs, successors and permitted assigns. The
Executive may not assign his rights or delegate his duties under this Agreement
either in whole or in part without the prior written consent of the Company. Any
attempted assignment or delegation without such consent will be void. The
Company has the right to assign this Agreement and its obligations hereunder,
but shall remain jointly liable for those obligations after any such assignment.
(c) Attorneys' Fees. If any action is necessary to enforce the terms
of this Agreement, the prevailing party will be entitled to reasonable
attorneys' fees, costs and expenses in addition to any other relief to which
such prevailing party may be entitled.
(d) Governing Law. This Agreement will be governed by and construed
in accordance with the laws of the State of Missouri excluding that body of law
pertaining to conflict of laws.
(e) Notices. Any notice or consent required by this Agreement shall
be in writing and either (i) personally delivered, (ii) mailed by certified or
registered mail, postage-prepaid, return receipt requested, or (iii) sent by
telefacsimile transmission and followed by delivery via U.S. mail, to such party
at the address and facsimile number to be provided by him or it or to such other
address and/or facsimile number as such party may hereafter designate by notice
given in accordance herewith. Such notices or consents shall be deemed duly
given upon the earliest to occur of (i) actual receipt, (ii) deposit in the
United States mail as hereinbefore set forth, or (iii) electronic confirmation
of transmission by telefacsimile.
(f) Complete Understanding; Modification. This Agreement, together
with any exhibits hereto executed by the parties, constitutes the complete and
exclusive
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understanding and agreement of the parties and supersedes all prior
understandings and agreements, whether written or oral, with respect to the
subject matter hereof. Any waiver, modification or amendment of any provision of
this Agreement will be effective only if in writing and signed by the parties
hereto.
(g) Jurisdiction and Venue. Any suit or legal proceeding with respect
to this Agreement shall be brought in the Circuit Court of St. Louis County,
Missouri or the United States District Court for the Eastern District of
Missouri. The parties hereto consent to the personal jurisdiction of the Circuit
Court of St. Louis County, Missouri and the federal court for the Eastern
District of Missouri.
(h) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
(i) Severability. The Company and the Executive both acknowledge
their understanding and intention that all of the provisions of this Agreement
shall be enforced to the fullest extent permissible. Accordingly, in the event
any provision of this Agreement shall be found invalid, void and/or
unenforceable, for any reason, neither this Agreement generally nor the
remainder of this Agreement shall thereby be rendered invalid, void, and/or
unenforceable, but instead each such provision, and (if necessary) other
provisions hereof, shall be reformed by a court of competent jurisdiction so as
to effect, insofar as is practicable, the intention of the parties as set forth
in this Agreement; provided, however, that if such court is unable or unwilling
to effect such reformation, the remainder of this Agreement shall be construed
and given effect as if such invalid, void, and/or unenforceable provisions had
not been a part hereof.
(j) Recitals. Each of the Recitals set forth on the first page of
this Agreement are hereby incorporated into this Agreement and made a part
hereof and form an integral part of this Agreement.
(k) No Adverse Inference. This Agreement shall not be construed more
strongly against one party or the other. The parties to this Agreement had equal
access to, input with respect to and influence over the provisions of this
Agreement. Accordingly, no rule of construction which requires that any
allegedly vague or ambiguous provision be interpreted more strongly against one
party than the other shall be used in interpreting this Agreement.
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IN WITNESS WHEREOF, the parties have signed this Agreement as of the
Effective Date.
EXECUTIVE: COMPANY:
ENTERPRISE FINANCIAL
SERVICES CORP.
/s/ Fred H. Eller By: /s/ Frank H. Sanfilippo
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Fred Eller Name: Frank H. Sanfilippo
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Title: Chief Financial Officer
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