Exhibit 10.8
KEY EXECUTIVE EMPLOYMENT AGREEMENT
----------------------------------
THIS AGREEMENT is made as of September 1, 2000, between ENTERBANK HOLDINGS,
INC., 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 in accordance with Schedule A, which is attached. Schedule A 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 the 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. This Company's obligation to Executive and the Executive's
employment hereunder may be terminated as follows:
i. Death. Immediately upon the Executive's death, provided that
-----
in such event the Company shall cause the salary, provided for in
Schedule A 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 of which the Executive's death occurs.
ii. Disability. By the Company upon thirty (30) days' prior
----------
written notice in the event the Executive, by reason of physical or
mental disability, shall be 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
74
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 salary provided for in
Schedule A to be paid to the Executive for the period through the date
of termination.
iii. 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 would 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 though
the effective date of the termination of his employment (which shall
be no earlier than the date of receipt of notice thereof) at the rate
in effect at the time of such termination.
iv. 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 during the 24-month period following
such involuntary termination of employment an amount equal to 200% of
the average of the Executive's Schedule A compensation for the two
employment years prior to termination (if Executive is employed for
less than two years, an extrapolated average yearly Schedule A
compensation shall be determined by the Company), payable in equal
weekly installments or at such other intervals as salary is normally
paid by the Company to its employees ("termination payment").
v. Resignation. Prior to six months from the full execution of
-----------
this Agreement, if Executive voluntarily resigns his employment and
provides at least a three (3) week notice, the Company shall pay the
Executive his full accrued Base Salary though the Executive's date of
termination of his employment at the rate in effect at the time of
such termination. If Executive voluntarily resigns his employment at
any time after three (3) months from the date of this Agreement, and
if the Executive agrees to any extension or postponement of his
resignation if requested by the Company and at his normal rate of
Schedule A compensation for a period not to exceed three (3) months,
the Company shall pay Executive the termination payment.
vi. Involuntary Termination Without Cause. If the Company
-------------------------------------
terminates Executive's employment other than as provided for in
Section 4a(i) through 4a(iv) of this Agreement, Executive shall be
entitled to the termination payment.
b. The Executive shall only 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 the
entire period to which the bonus applies has elapsed prior to the date of
termination.
c. Immediately upon the effective date of any termination, except as
otherwise provided in this Section 4a. 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.
75
5. Company Documents. Any and all document 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 Executive's 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 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 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
76
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 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.
The Executive, therefore, acknowledges and agrees that, in the event of
any violation of 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
77
and in addition to whatever other remedies the Company may have, including
without limitation recovery of damages and attorney's 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.
b. As this Agreement is a contract for personal services, neither this
Agreement nor any of
78
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 Sate 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, 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 right 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 Bank
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 wavier 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.
ENTERBANK HOLDINGS, INC.
Dated September 1, 2000 By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Its CFO
Dated September 1, 2000 By: /s/ Xxxx X. Xxxxx
-----------------------------
Executive
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Witness
79
Schedule A
Xxxx Xxxxx
Total Compensation consists of:
Current base salary/1/
Plus: The average of the last two year-end bonuses/2/
Sample calculation based on information as of August 31, 2000:
Current base salary $275,000.00
1998 year-end bonus $ 75,000.00
1999 year-end bonus $100,000.00
Average of the last two year-end bonuses $ 87,500.00
-----------
Total Compensation $362,500.00
===========
/1/ Base salary is the base salary in effect at the end of the last calendar
quarter prior to the termination or resignation of the employee.
/2/ Bonus is defined as bonuses due the employee at year end regardless of
whether the bonus is paid at year end or the beginning of the following year. If
no bonus is due, then $0 is used in the calculation for that year-end bonus.
80
