Exhibit 10.1
AMENDMENT #1
THIS AMENDMENT (this "Amendment") to the Customer Referral and Support Agreement
dated February 26, 1999 (the "Agreement") by and among Moneta Group Investment
Advisors ("MGIA"), Enterbank Holdings, Inc. ("Enterbank") and Enterprise Bank of
Xxxxxxx ("Bank") is made and entered into as of March 1, 2001.
WHEREAS, MGIA, Enterbank and the Bank desire to amend the Agreement as provided
herein.
NOW THEREFORE, in consideration of the foregoing premises and the mutual
promises and covenants herein contained, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Section 4 (a) of the Agreement is hereby deleted and replaced in its
entirety with the following:
"(a) Beginning January 1, 2001 and each year thereafter, Bank shall
pay to MGIA an annual fee as set forth below:
Annual Fee as a
EFA Gross Margin Percentage of EFA Gross Margin
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First $2,000,000 12.5% of EFA Gross Margin
Next $2,000,000 15.0% of EFA Gross Margin
$4,000,001 - $6,000,000 17.5% of EFA Gross Margin
$6,000,001 - $8,000,000 15.0% of EFA Gross Margin
$8,000,001 and above 12.5% of EFA Gross Margin
The fee shall be computed based upon EFA Gross Margin as of
December 31st of the prior year. The fee shall be due and payable
annually within thirty (30) days after December 31st of the prior
year. If, prior to December 31st, there is a Change in Control or
this Agreement is terminated by Enterbank or Bank prior to the
Termination Date (defined below), MGIA shall be entitled to a
pro-rated portion of the above-referenced fee from January 1 to
the date of the Change in Control or the Termination Date, as
applicable. Such pro-rated fee shall be due and payable within
thirty (30) days of the date of such Change in Control or the
Termination Date."
2. Section 13 (a) of the Agreement is hereby deleted and replaced in its
entirety with the following:
"(a) Term. This Agreement shall be for a term of fifteen years
commencing on the date hereof and expiring on January 1, 2014
("Termination Date"); provided, however, that:
(i) This Agreement may be terminated prior to the expiration
of its term (i) in the event that Enterbank or Bank shall
be subject to a Change in Control and Enterbank pays to
MGIA the compensation set forth in the Section 4(b), or
(ii) at the election of Enterbank or Bank after the grant
by Enterbank of Termination Options to MGIA as determined
in accordance with Section 5(c).
(ii) the expiration of this Agreement at the end of the term or
otherwise shall not relieve Bank of its obligation to
determine the EFA Gross Margin for the final accounting
period of this Agreement or the obligation of Enterbank to
pay compensation to MGIA or issue options in accordance
with the terms of this Agreement with respect to such
final accounting period.
(iii) the expiration or termination of this Agreement shall not
affect the validity of any outstanding option.
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(iv) the expiration of this Agreement at the end of the term or
otherwise shall not terminate the indemnification and hold harmless obligations
and covenants of the parties as set forth herein."
3. Except as specifically modified by this Amendment, all terms and conditions
of the Agreement shall remain in full force and effect. In the event of any
inconsistency between the terms of the Agreement and this Amendment, the terms
of this Amendment shall control and the terms of the Agreement shall be
construed so as to be consistent therewith. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
4. This Amendment may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one instrument,
and in pleading or proving any provision of this Amendment, it shall not be
necessary to produce more than one of such counterparts.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date
first above written.
MONETA GROUP INVESTMENT ADVISORS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
ENTERBANK HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Chief Financial Officer
ENTERPRISE BANK OF XXXXXXX
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, President
The undersigned hereby consents to the Amendment to the Agreement as set forth
above:
X.X. XXXXXXXX AND CO., INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: President
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