EXHIBIT 10.10
ENTERPRISE FINANCIAL SERVICES CORP.
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT, is made by and between PETER F. BENOIST (the
"Executive") and ENTERPRISE FINANCIAL SERVICES CORP, a Delaware corporation (the
"Company"), effective as of October 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 Executive
Vice President of the Company, and the Chairman and Chief Executive Officer of
the Company's subsidiary, Enterprise Bank, and shall have such duties and
responsibilities as are customarily assigned to individuals serving in such
positions and such other duties as the Board of Directors (the "Board") may from
time to time specify consistent with such corporate offices and positions.
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 term commencing on the Effective Date and ending on
December 31, 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
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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 $250,000 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 calendar year 2003 and each calendar
year thereafter 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 $500,000 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. 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 Company's Chief Executive
Officer in collaboration with 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 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 $250,000 for calendar 2003 and in subsequent years such
amounts as the Company's Chief Executive Officer in collaboration with
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 $500,000. 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 Company's Chief Executive
Officer in collaboration with 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 Company's Chief Executive
Officer in collaboration with the Board (or such committee) have been
met, the Company's Chief Executive Officer in collaboration with 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
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.
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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.
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; and (ii) to reimburse
Executive for dues and assessments in respect of club memberships
maintained by Executive up to a maximum of $7,500 per year.
4.6 Stock Options and Long-Term Incentives. Effective as of the
Effective Date, Executive was granted ten-year non-qualified options to
acquire _____ shares of the common stock of the Company at a per-share
exercise price of $_____ pursuant to the terms of the Company's 2002
Stock Incentive Plan. Such options shall vest and become exercisable at
the rate of _______ shares on October 1 of each of 2003, 2004 and 2005,
provided that Executive remains continuously employed by the Company
through such dates.
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
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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 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, and (ii) such
illness or incapacity continues for a period of more than 90 consecutive
days, or 90 days during any 180 day period, 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 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
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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 (iv)
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 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");
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(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.
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.
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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 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 exerciseability
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
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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 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 exerciseability 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,
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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, 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.
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
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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:
To Company: To Executive: at his current
Enterprise Financial Services Corp residential address on file with
150 North Meramec the Company.
Clayton, Missouri 63105
Attention: President
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.
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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 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.
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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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Peter F. Benoist
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