EXHIBIT 10.9
ENTERPRISE BANKING
KEY EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of October 16, 2002, between ENTERPRISE
FINANCIAL SERVICES CORP, a Delaware Company, its subsidiaries, affiliates,
successors and assigns (the "Company"), and XXXX XXXXX (the "Executive").
A. The Company is engaged in providing of financial products and
services including banking, trust services, financial consulting, merchant
banking activities and related products and services to persons and corporations
(the "Business").
B. The Company wishes to employ or continue to employee the
Executive in connection with the conduct of the Business, and the Executive is
willing to accept such employment or continued employment, on the terms and
conditions set out in this Agreement.
C. In such position, the Executive will have substantial customer
contacts, will perform special and unique duties and services for the Company,
and will acquire confidential information concerning the customers, business
operations, and trade secrets of the Company (as further defined in this
Agreement). The success of the Business requires maintaining strict secrecy with
respect to the Confidential Information of the Company.
D. The parties to this Agreement agree that substantial and
irreparable loss and damage will be suffered by the Company in the event of a
breach of this Agreement by the Executive.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and mutual
representations and covenants contained herein and other good and valuable
consideration received by the Executive, the parties agree as follows:
1. Compensation. In full consideration for the Executive's services
and subject to the due performance thereof, the Executive shall be entitled to
compensation as agreed to by the parties, which may be changed from time to time
by written agreement of the parties, provided that, in such event, all of the
other terms and conditions of this Agreement shall remain in full force and
effect.
2. Benefits. The Executive will be permitted to participate in such
pension, profit sharing, bonus, life insurance, hospitalization, major medical,
and other employee benefit plans of the Company that may be in effect from time
to time, to the extent the Executive is eligible under the terms of those plans.
3. Duties. The Executive is engaged to perform such executive and
managerial duties as may be delegated to Executive from time to time by or under
the authority of the Company's Board of Directors, President or other
appropriate officers. The Executive shall devote all of Executive's business
time and attention to the performance of such duties which are in the area of
the Business as defined above, subject to the direction and control of the
Company. The Executive shall comply with all oral and written rules, regulations
and policies of the Company.
4. Termination of Employment.
a. Death, Disability and For Cause Terminations
i. Death. The Agreement shall terminate immediately
upon the Executive's death, provided that in such event the
Company shall cause Executive's salary to be paid to the
Executive's estate for the period through the earlier of (1) the
end of the current payroll period or (2) the end of the calendar
month in which the Executive's death occurs.
ii. Disability. Company may, upon thirty (30) days'
prior written notice, terminate this Agreement in the event the
Executive, by reason of physical or mental disability, shall be
92
unable to perform the services required of the Executive
hereunder. In the event of disagreement concerning the existence
of any such disability, the matter shall be resolved by a
disinterested licensed medical doctor chosen by written
agreement of the Company and the Executive. If the Company and
the Executive cannot agree on a selection of a medical doctor,
each of them will select a medical doctor, and the two medical
doctors will select a third medical doctor who will determine
whether the Executive has a disability. The existence of such a
disability shall be conclusively presumed in the event either
(a) the Executive is entitled to payment of benefits under any
disability insurance policy or program carried by the Company or
(b) the Executive is unable to perform his or her duties for a
total of 60 or more calendar days (whether or not consecutive)
during any period of one hundred eighty (180) consecutive
calendar days, whether as a result of one or more illnesses or
ailments. In the event of any such termination, the Company
shall cause the Executive's salary to be paid to the Executive
for the period through the date of termination.
iii. For Cause. The Company may terminate the
Executive's employment for Cause. For this purpose, "cause"
shall include, without limitation, (i) Executive's
insubordination, meaning the willful failure to conform to or
conduct himself or herself in accordance with the policies and
standards of Company (unless deviation from said written policy
is considered a "known normal business practice") or the refusal
to perform the duties assigned pursuant to Section 3; (ii) the
dishonesty of Executive; (iii) Executive's commission of a
felony, fraud, embezzlement or any other act of moral turpitude;
(iv) any willful violation by Executive of laws or regulations
applicable to Company's business; (v) Executive's gross
negligence or willful misconduct in the performance of
Executive's duties under this Agreement which could adversely
affect the business or reputation of Company. If the Executive's
employment is terminated for Cause, the Company shall pay the
Executive his full accrued Base Salary through the effective
date of the termination of his employment (which shall be no
earlier than the date of Executive's receipt of notice thereof)
at the rate in effect at the time of such termination.
iv. If the Executive's employment is terminated for
the reason provided above in 4(a)i-iii, Executive shall be
entitled to receive any salary or other compensation to which
the Executive is entitled which accrues through the date of
termination. Unless otherwise specifically agreed to by the
Company in this Agreement, any bonus or other compensation or
benefits applicable to the Executive shall be deemed to have
accrued only in the event that the entire period to which the
bonus applies has elapsed prior to the date of termination.
b. All Other Employment Terminations
i. Change of Control. If following a Change of
Control, Executive's employment terminates and Executive is not
offered a new position comparable to his position, at the same
or greater base salary and located within sixty (60) minute
normal commuting distance from the Executive's office
immediately prior to Charge of Control, the Company shall pay
Executive as provided below in 4(b)iv.
ii. Resignation or Retirement. If Executive
voluntarily resigns his employment or retires and Executive
agrees to any extension or postponement of his resignation or
retirement if requested by the Company at his normal rate of
compensation for a period not to exceed three (3) months, he
shall be entitled to the payment as provided below in 4(b)iv.
iv. Involuntary Termination Without Cause. If the
Company terminates Executive's employment other than as provided
for in Section 4a(i) through 4a(iii) of this Agreement,
Executive shall be entitled to the payment provision below in
4(b)iv.
iv. If Executive's employment is terminated as
provided for in 4(b)i-iii above, he shall be entitled to 24
months severance pay, to be paid in accordance with the
Company's standard payroll procedures over a 24 month period.
Executive will be paid severance pay as determined by his total
compensation which consists of: (1) his base salary in effect as
of the end of the most recent quarter prior to termination, (2)
the last twelve months production commissions (including all
commissions less first year commissions from the sale of life
insurance), (3) the average of the last two year's first year
insurance commissions and (4) the last twelve months average
management override/specialist override.
93
c. Immediately upon the effective date of any termination, except
as otherwise provided in this Section 4b and as provided below
in this Agreement, all obligations of the Company, including the
obligation of the Company to pay any compensation or other
benefits to the Executive accruing after the date of such
termination, shall cease.
5. Company Documents. Any and all documents in any way related to
the Company and/or its customers or prospective customers shall be and remain
the sole and exclusive property of the Company and are subject to immediate
recall at any time by the Company. Document is used in the broadest sense and
includes, but is not limited to meaning, any writing or recording, graphic or
other matter, whether produced, reproduced or stored on paper, cards, tapes,
discs, belts, charts, film, computer storage devices, or any other medium
including, but not limited to, matter in the form of books, manuals, pamphlets,
resolutions, plans, proposals, minutes of meetings, conferences and telephone or
other communications, reports, studies, statements, notebooks, applications,
original agreements, appointment calendars, working papers, charts, graphs,
diagrams, contracts, memoranda, notes, records, correspondence, original
diaries, bookkeeping entries, regulations, or any published material and also
includes, but is not limited to, originals (unless otherwise stated), copies
(with or without notes or changes thereon), and drafts. Upon recall of the
documents or upon termination of the Executive's employment (whether such
termination is initiated by the Executive or the Company and regardless of the
reason for such termination, whether or not such reason constitutes good cause),
the Executive shall deliver such documents to the Company within seventy-two
(72) hours. The Executive shall also provide the Company within seventy-two (72)
hours with a written guarantee that states that all of the Company's documents
have been returned to the Company pursuant to this Section.
6. Non-disclosure of Information. Executive will not, except as
authorized by Company in writing or as required by any law, rule or regulation
after providing prior written notice to Company within sufficient time for
Company to object to production or disclosure or quash subpoenas related to
same, during or at any time after the termination of Executive's employment with
Company, directly or indirectly, use for Executives benefit or for the benefit
of others, or disclose, communicate, divulge, furnish to, or convey to any other
person, firm, or Company, any secret or confidential information, knowledge or
data of Company or that of third parties obtained by Executive during the period
of Executive's employment with Company, and such information, knowledge or data
includes, without limitation, the following:
. Secret or confidential matters of a technical nature such as,
but not limited to, methods, know-how, formulations,
compositions, processes, computer programs, and similar items or
research projects involving such items,
. Secret or confidential matters of a business nature such as, but
not limited to, marketing policies or strategies, information
about costs, price lists, purchasing and purchasing policies,
profits, marketing, sales or lists of customers, customer
history information, and
. Secret or confidential matters pertaining to future developments
such as, but not limited to, research and development or future
marketing or merchandising.
7. Subsequent Employment: Executive must personally notify Company
in writing regarding the details of any new employment within seventy-two (72)
hours of accepting an offer of employment. Company may notify any person, firm,
or company employing Executive or potentially employing Executive as to the
existence and provisions of this Agreement.
8. Non-Competition:
a. Executive recognizes that during the course of
Executive's employment with Company, Executive has been and will be
instructed by Company about and become acquainted with and shall gain
knowledge of confidential information of Company, including, but not
limited to confidential information about customer and prospective lists
and proposals, methods of sales, the existence and contents and terms of
this Agreement, methods of sales procurement, sales procurement
techniques, sales procedures and equipment/supply information, supply
acquisition procedures and processes and sources, customer acquisition
and evaluation procedures, customer maintenance procedures and
corresponding information relating to persons, firms and corporations
which are or may become customers of Company by virtue of Executive's
employment by the Company, Executive will have access to the Customer
Lists and will be directly involved in developing such lists and
maintaining customer relationships and, further, companies from which
Company obtains various products for sale, resale and distribution to
customers of Company specific and unique knowledge of the persons,
firms, Company, and other entities that purchase or use
94
products sold by the Company or have purchased products sold by the
Company. Further, Executive agrees and acknowledges that the development
and assemblage and maintenance of the customer lists, information,
documents, and business of Company has taken extraordinary time, money,
resources, training, and effort by Company and its employees and
accordingly, Executive agrees that Executive will not during Executive's
period of employment with Company and for a period of two (2) years
following cessation of Executive's employment at Company for any cause
or reason ("restricted period"), directly or indirectly, engage in any
business in competition with Company with respect to the sale of,
maintenance of, billing and processing of, services and products in the
markets and supplies and sale for and/or to present customers, former
customers (defined as any person or Company who was a customer during
the two (2) years prior to the cessation of Executive's employment) and
prospects of Company. Executive agrees that during Executive's period of
employment with Company and for the two (2) year restricted period
following cessation of Executive's employment with Company, Executive
shall not induce or attempt to induce any present, former, or
prospective customer (defined as any company or person that has been or
is in the loan approval process or to whom the company has made a
presentation for deposit within the last two (2) years) of Company to
become a customer of Executive at any person, firm, or Company, or
business association with which Executive is or becomes affiliated in
any capacity with respect to the business which Company is engaged in
currently and/or during the period of employment.
b. The Executive shall not at any time during the term of
his or her employment by the Company and for a period of two (2) years
following the termination thereof (whether such termination is initiated
by the Executive or the Company and regardless of the reason for such
termination, whether or not such reason constitutes good cause),
directly or indirectly, induce or attempt to induce any employee of the
Company or of any of its subsidiaries or affiliates to cease employment
with the Company or its subsidiaries or affiliates, as the case may be,
or to seek employment elsewhere.
c. The Company and the Executive acknowledge their
understanding that the laws and public policies of the various states of
the United States may differ as to the validity and enforceability of
the covenants contained in this Section and hereby acknowledge their
understanding and intention both that the provisions of this Section
shall be enforced to the fullest extent permissible and the
unenforceability of or modification necessary to conform with such laws
and public policies shall not render unenforceable any other provision
hereof. Accordingly, to the extent that any covenant in this Section
shall be adjudicated to be invalid or unenforceable, such covenant (or
portion thereof) shall automatically be amended to such extent as may
grant the Company the maximum protection and restriction on Executive's
activities permitted by applicable law. The invalidity or
unenforceability of any particular provision of this Agreement shall not
affect the other provisions hereof and this Agreement shall be construed
in all respects as if any invalid or unenforceable provision were
omitted.
d. The two (2) year time periods described in this Section
shall begin on the date of termination of the Executive's employment
with the Company.
9. Non-Disparagement: The Executive further agrees that, during the
term of employment by the Company and thereafter (whether such termination is
initiated by the Executive or the Company and regardless of the reason for such
termination, whether or not such reason constitutes good cause), Executive will
not, directly or indirectly, in any individual or representative capacity
whatsoever, make any statement, oral or written, or perform any other act or
omission which is or is likely to be materially detrimental to the goodwill of
the Company or any of its subsidiaries or affiliates. However, Executive may
provide truthful responses to inquiries regarding objectively verifiable
information.
10. Remedies. The Executive recognizes that the Company has a valid,
protectable right and business interest in preserving the information and
relationships described in this Agreement and that each covenant and agreement
of the Executive contained in such Sections is a material and essential
precondition to the Company's agreement to employ the Executive under the terms
set forth in this Agreement. The parties further agree that the services to be
rendered by the Executive are of a special, unique, and extraordinary character
and the Executive hereby acknowledges that: (i) the covenants and agreements
contained herein are reasonable and necessary in order to protect the legitimate
business interests of the Company; (ii) the enforcement of such covenants would
not unreasonably impair the Executive's ability to earn a livelihood; and (iii)
any breach or violation thereof would result in irreparable injury and harm to
the Company and its affiliates and subsidiaries, for which the Company would be
without adequate legal remedy as long as the company escrows the disputed
termination pay as it becomes due with Southwest Bank or other mutually
agreeable escrow agent.
95
The Executive, therefore, acknowledges and agrees that, in the event of
any violation or breach of this Agreement, whether threatened or actual, the
Company shall be authorized and entitled to obtain, any and all injunctive
relief and/or restraining orders available to it so as to prohibit, bar, and
restrain any and all such breaches by the Executive. Any such equitable remedies
or relief available to the Company shall be cumulative and in addition to
whatever other remedies the Company may have, including without limitation
recovery of damages and attorneys' fees. The Executive waives any requirement
that the Company post bond of any sort in connection with any action taken by
the Company hereunder.
11. Prior Employment. The Executive expressly confirms that the
duties to be performed in connection with employment by the Company will not
violate any contractual or other restrictions applicable to the Executive,
including any restrictions contained in any employment agreement between the
Executive and any prior employer. The Executive will fully indemnify and hold
the Company harmless from and against any and all liability, cost or expense
(including attorney's fees) which the Company may suffer as a result of a breach
by the Executive of this Section or of any agreement with any prior employer.
12. Definitions.
a. "Subsidiary" shall mean any Company owned or controlled
by the Company, directly or indirectly, through stock ownership, and
shall include (but not be limited to) each Company a majority of the
voting stock of which is owned by the Company or any such other
majority-owned subsidiary (or a chain thereof) of the Company.
b. "Affiliate" shall mean any Company or other entity
controlling, controlled by or under common control with the Company,
directly or indirectly, through stock ownership or otherwise.
c. "Successors and assigns" shall mean any person, Company
or other entity which succeeds to purchase, acquire or accept
assignments of all or substantially all of the assets or outstanding
stock of the Company, whether by agreement or operation of law.
d. A "Change of Control" shall mean an event or act or
combination thereof the direct or indirect result of which is that (a)
the individuals who constitute the Board of Directors on the date hereof
(the "Incumbent Board") cease for any reason to constitute at least a
majority thereof, provided that any person becoming a director
subsequent to the date hereof, whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at
least three-quarters of the directors comprising the Incumbent Board
(either by a specific vote or by approval of the proxy statement of the
Company in which such person is named as a nominee for director, without
objection to such nomination) shall be, for purposes of this clause
considered as though such a person were a member of the Incumbent Board,
or (b) the incumbent stockholders of the Company approve or ratify a
reorganization, merger or consolidation and, immediately thereafter, the
incumbent stockholders do not own, directly or indirectly, more than 50%
of the combined voting power entitled to consolidated company's then
outstanding voting securities, or a liquidation or dissolution of the
Company or of the sale of all or substantially all of the assets of the
Company. For purposes of this Agreement, the term "Person" shall mean
and include any individual, Company, partnership, group, association or
other "person," other than the Company, a subsidiary of the Company or
any employee benefit plan(s) sponsored or maintained by the Company or
any subsidiary thereof.
13. Non-Waiver of Rights. The failure to enforce at any time any of
the provisions of this Agreement or to require at any time performance by the
other party of any of the provisions hereof shall in no way be construed to be a
waiver of such provisions or to affect either the validity of this Agreement, or
any part hereof, or the right of either party thereafter to enforce each and
every provision in accordance with the terms of this Agreement.
14. Invalidity of Provisions. The invalidity or unenforceability of
any particular provisions of this Agreement shall not affect the other
provisions hereof, and this Agreement shall be construed in all respects as if
such invalid or unenforceable provisions were omitted.
15. Assignments.
a. This Agreement and the Company's rights and obligations
hereunder shall be freely assignable by the Company to, and shall inure
to the benefit of, and be binding upon any other corporate entity which
shall succeed to all or part the Business conducted by the Company.
96
b. As this Agreement is a contract for personal services,
neither this Agreement nor any of the Executive's rights and obligations
hereunder shall be assignable by the Executive.
16. Governing Law. This Agreement shall be interpreted in accordance
with and governed by the laws of the State of Missouri.
17. Jurisdiction. The Company and the Executive hereby agree to
submit any suit, action, or proceeding arising out of or relating to this
Agreement to the jurisdiction of the Circuit Court St. Louis County, Missouri or
the United States District Court for the Eastern District of Missouri. The
Company and the Executive further agree that all claims with respect to such
suit, action or proceeding may be heard and determined in any of such courts.
The Company and the Executive waive, to the fullest extent permitted by law, any
objection regarding the venue of such suit, action or proceeding in any court
aforementioned, including proceedings for enforcement of any court order and the
Company and the Executive further waive any claim that such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
The Company and the Executive hereby expressly waive all rights of any other
jurisdiction which either of them may now or hereafter have by reason of their
present or subsequent domiciles.
18. Notices. Any notice given by either party hereunder shall be in
writing and shall be personally delivered, telexed, or wired, or mailed
(certified or registered mail, postage prepaid), as follows:
To the Company: Enterprise Financial Services Corp
000 Xxxxx Xxxxxxx
Xxxxxxx, XX 00000-0000
To the Executive: At his or her address set forth on the payroll
records of the Company
or to such other address as may have been furnished to the other party by
written notice.
19. Counterparts. This Agreement may be executed in one or more
identical counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
20. Attorneys' Fees. In the event of violations or alleged
violations of this Agreement, the prevailing party to any resulting action or
claim shall be entitled to all expenses and costs incurred in protecting or
enforcing its rights hereunder, including but not limited to reasonable
attorney's fees and expenses.
21. Entire Agreement. This agreement contains the entire agreement
of the parties in this matter. No modification, amendment or waiver of any of
the provisions of this Agreement shall be effective unless in writing
specifically referring hereto, and signed by both parties.
IN WITNESS WHEREOF, the Executive and the Company have executed this
Agreement as of the day and year above written.
ENTERPRISE FINANCIAL SERVICES CORP
Dated By
---------------------- ------------------------------------
Its
------------------------------
Dated
---------------------- ------------------------------------------
Xxxx Xxxxx
----------------------------
Witness
97
