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CUSTOMER REFERRAL AND SUPPORT AGREEMENT
THIS AGREEMENT is made this 26th day of February, 1999, by and among
Moneta Group Investment Advisors, Inc., a Missouri corporation ("MGIA"),
Enterbank Holdings, Inc., a bank holding company organized under the laws of
Delaware ("Enterbank"), and Enterprise Bank of Xxxxxxx, a banking subsidiary
of Enterbank (the "Bank").
RECITALS:
A. MGIA is an investment adviser registered with the Securities and
Exchange Commission pursuant to the Investment Advisers Act of 1940, as
amended, and provides investment advisory and financial planning services to
individuals and business organizations.
B. The Bank is engaged in accepting deposit accounts and in making
loans or otherwise extending credit and providing commercial bank services.
The Bank also has established a new division, Enterprise Financial Advisors,
which offers financial planning, insurance and trust services, through its
subdivision Enterprise Trust (collectively, "EFA").
C. Prior to the date of this Agreement, principals of MGIA ("MGIA
Principals") have recommended to certain of their clients the banking
services offered by Bank, subject to the discharge of their fiduciary
obligation to clients and to the extent consistent with this obligation.
D. Prior to the date of this Agreement, MGIA Principals also have
provided training and consulting services to EFA personnel.
E. Bank believes that referrals by MGIA Principals of MGIA clients
to Bank will contribute to the growth of the Bank's deposit and lending
activities and it desires to enter into this Agreement to promote and
encourage such referrals by MGIA Principals.
F. Bank also believes that training and consulting services provided
by MGIA Principals will contribute to the growth and financial success of EFA
and it desires to enter into this Agreement with MGIA to ensure continued
access to these services.
G. Enterbank has entered into this Agreement to secure for itself
and its subsidiaries the benefits of the incentive inherent in common stock
ownership by MGIA Principals, who are important to its future growth and
financial success; and affording MGIA Principals the opportunity to obtain or
increase a proprietary interest in Enterbank and, thereby, to have an
opportunity to share in its success.
H. The granted options shall be a nonqualified stock options which
do not satisfy the requirements of Section 422 of the Internal Revenue Code.
I. This Agreement shall supersede and replace the Customer Referral
Agreement dated October 31, 1997 by and among MGIA, Enterbank and Bank, as
well as the Moneta Bank
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Marketing and Solicitation Agreement dated October 31, 1997, by and among MGIA,
X.X. Xxxxxxxx & Co., Inc. and Bank; provided that, upon termination, MGIA and
X.X. Xxxxxxxx & Co., Inc. shall remain obligated to pay to Bank the amounts to
which Bank was entitled to receive with respect to the accounts referred to
MGIA by Bank and listed on Schedule A attached hereto.
NOW, THEREFORE, it is hereby agreed as follows:
1. DEFINITIONS. When used in this Agreement, the following
terms shall have the following meanings:
(a) "Agreement" shall mean this Customer Referral and
Support Agreement.
(b) "Change in Control" shall mean the happening of any
of the following events:
(i) The sale of all or substantially all of the
assets of Enterbank or the Bank;
(ii) Any person or entity who is not a shareholder
of Enterbank on the date this Agreement is executed becomes the
beneficial owner, directly or indirectly, of securities of
Enterbank representing more than fifty percent of the combined
voting power of Enterbank's then outstanding securities;
(iii) Any merger or consolidation involving Enterbank
other than a merger or consolidation in which the outstanding
capital stock of Enterbank immediately prior to the
effectiveness of such merger or consolidation is converted into
(or remains outstanding and constitutes) a majority of the voting
common stock of the surviving or resulting entity; or
(iv) Any transaction pursuant to which a majority of
the outstanding capital stock of either Enterbank or of the Bank
is acquired by a person or group pursuant to a tender offer or
plan of acquisition or reorganization.
(c) "EFA Gross Margin" shall mean total revenues of EFA
including, but not limited to, EFA financial planning and trust fees,
and brokerage commissions and insurance commissions generated from EFA
clients by the Bank, less subcustodial fees paid by the Bank on behalf
of EFA clients (or costs of custodial services incurred directly by
Bank on behalf of EFA clients, in an amount not to exceed the
percentage of such total revenues paid by Bank as subcustodial fees
immediately prior to Bank's direct provision of custodial services) and
less brokerage and insurance commissions paid by the Bank to EFA
financial planning representatives, before taxes and interest, as
determined in accordance with generally accepted accounting principles,
consistently applied.
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(d) "Effective Date" Shall mean the date of execution of
this Agreement as set forth above.
(e) "Market Value Per Share" Of a share of Enterbank's
common stock shall mean the following:
(i) if the common stock of Enterbank is traded on a
national securities exchange or if such stock is traded on the
over-the-counter market maintained by NASDAQ, Inc., then the
Market Value Per Share shall be equal to the reported closing
price per share of such stock as of the applicable date; or
(ii) if the common stock of Enterbank is not traded
as provided in (i) above, and Enterbank has granted Stock Options
or Stock Appreciation Rights to employees or directors within
thirty (30) days preceding the applicable date, the Market Value
Per Share shall be the Market Value Per Share as used for
purposes of the last such grant; or
(iii) if not traded as provided in (i), and (ii)
above is not applicable, then the Market Value Per Share shall be
determined in good faith by the Board of Directors of Enterbank
in consultation with the firm of X.X. Xxxxx & Co., or another
broker-dealer as may be agreed upon by Enterbank and MGIA.
(f) "MGIA Referral Accounts" shall have the meaning set
forth in Section 2(d).
(g) "Option Price" shall mean Market Value Per Share on
the date of the grant of the option.
(h) "Optioned Shares" shall mean the shares an MGIA
Principal is entitled to purchase pursuant to this Agreement.
(i) "Stock Option Agreement" shall mean a stock option
agreement in substantially the form as Exhibit A to this Agreement.
2. REFERRALS OF MGIA CLIENTS TO BANK.
(a) Bank Deposit Accounts. Subject to and to the extent
consistent with its fiduciary duty to its clients, MGIA will recommend
that its clients establish deposit accounts at the Bank. MGIA will
provide to Bank such account documentation as Bank shall require. MGIA
also will request that its clients sign a limited power of attorney
granting MGIA authority to withdraw funds from such Bank account for
the limited purpose of settling purchases of securities by the client
and to disburse funds from such account only to an another account of
client that is titled in an identical manner to the client's Bank
account. Bank will be authorized to rely upon instructions received
from MGIA Principals who have been granted a limited power of attorney
by a
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client, and MGIA agrees to indemnify and hold harmless Bank from
and against any loss, claim, damage or expense suffered by Bank as a
result of Bank's reliance on instructions from that Principal; provided
that, the loss was not caused by Bank's negligence.
(b) Loans and Other Bank Services. Subject to and to the
extent consistent with its fiduciary duty to its clients, MGIA will
refer its clients to Bank for loans and other credit and financial
services (but not financial planning services) provided by Bank. MGIA
and Bank agree that any MGIA client referred by MGIA will have
discretion to elect the use of any banking service offered by Bank
subject to the terms and fees as may be agreed upon between Bank and
such client.
(c) Exclusivity of Referrals. Although MGIA may, in the
exercise of its fiduciary duty to its clients, recommend other banks or
financial institutions that offer deposit, loans and other services
similar to those provided by the Bank, MGIA agrees that this is an
exclusive Agreement. Enterbank and Bank agree that, within a 100 mile
radius of the City of St. Louis, neither Enterbank nor Bank shall not
enter into any material agreement with any other non-affiliated party
to provide referrals to Bank for compensation without prior written
consent from MGIA. Material agreements are those agreements that may
reasonably cause the non-affiliated party to earn in excess of $25,000
per year in compensation from Enterbank or Bank, or both. Under no
circumstances shall Enterbank or Bank enter into any compensation
agreement with a non-affiliated financial planning firm within a 100
mile radius of the City of St. Louis.
(d) Identification of MGIA Referral Accounts. Accounts
of MGIA clients referred to the Bank shall be identified as "MGIA
Referral Accounts" as follows:
(i) Each deposit account established by an MGIA
Principal on behalf of an MGIA client, each deposit account of a
MGIA client referred to Bank by an MGIA Principal on or after
October 31, 1997, and each account listed on Schedule B attached
hereto shall be deemed to be an MGIA Referral Account.
(ii) MGIA will identify to Bank at the time of
introduction to Bank those clients that it will introduce to Bank
for loans, deposits or other banking services. Each account
established, or banking service utilized, by a person who was
introduced to the Bank by an MGIA Principal shall be deemed to be
an MGIA Referral Account; provided, however, that any account
established by a client who has had a banking relationship with
Bank prior to the introduction shall not be deemed to be an MGIA
Referral Account unless the Joint Resolution Committee (as
defined below) determines that MGIA's referral of such client has
caused the Bank expand its relationship with that client as a
result of such referral.
(iii) Accounts established with Bank by persons who
have a "primary relationship" with the holder of an MGIA Referral
Account ("Account Holder") also will be deemed to be MGIA
Referral Accounts. For purposes of
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this paragraph, "primary relationship" means the person is: (a) a
member of the "immediate family" of the Account Holder, (b) a trust
or other fiduciary account of which the Account Holder is either
the settlor or the fiduciary; or (c) an account established by or
for the benefit of an entity or person that is controlled by or
under common control with the Account Holder. An "immediate
family" member as used herein shall mean the spouse, direct lineal
descendant or parent of an Account Holder.
(e) Monthly Report. Bank shall provide to MGIA a monthly
report of all MGIA Referral Accounts opened during the prior month.
(f) Disclosure of Referral Relationship. As a fiduciary
to its clients, MGIA will disclose to its clients the relationship
arising between MGIA and Bank in a manner consistent with applicable
legal and regulatory requirements.
3. TRAINING SERVICES TO BE PROVIDED BY MGIA. MGIA will
provide training for all EFA financial planning representatives ("EFA
Financial Planners"), which training shall be comparable to that provided by
MGIA to its investment advisory representatives. MGIA will provide
consulting services regarding registration of EFA Financial Planners with the
appropriate broker-dealer firm and applicable federal and state securities
and insurance regulatory authorities and MGIA will use its best efforts to
secure fee arrangements with a broker-dealer firm and other service providers
similar to those obtained by MGIA. MGIA also will provide EFA with training
regarding, and access to, financial planning software and programs, which
software and programs shall be comparable to those provided by MGIA to its
investment advisory representatives. MGIA will train EFA officers in
recruiting and testing techniques for testing potential candidates. MGIA
also will train new EFA employees in sales techniques and case work
preparation. MGIA shall provide such additional training and consulting
services in the future as the parties may agree to in writing.
MGIA shall not engage in any investment advisory, securities brokerage
or insurance agent activities on behalf of Bank clients. MGIA Principals
shall not recommend any security or insurance product, give any form of
advice or discuss the merits of any security or insurance product with a Bank
customer.
4. CASH COMPENSATION TO MGIA.
(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
----------------- ------------------------------
First $2,000,000 12.5% of EFA Gross Margin
Next $2,000,000 15.0% of EFA Gross Margin
$4,000,001 and above 17.5% of EFA Gross Margin
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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.
(b) In the event of a Change in Control, Enterbank agrees
to pay to MGIA a lump sum payment within thirty (30) days of the date
of the Change in Control in an amount calculated as follows:
EFA Adjusted Net Income for the four complete fiscal quarters
immediately preceding the Change in Control
x 17.5%
x Enterbank's Price/Earnings Ratio (based on the earnings for
such four fiscal quarters) as of the date of the Change in
Control
= Lump Sum Payment to MGIA upon Change in Control
As used herein, "EFA Adjusted Net Income" shall mean Net Income of the
EFA division as reflected in the books and records of Enterbank as determined
in accordance with generally accepted accounting principles. Net Income
shall reflect revenues from all trust and financial planning activities,
including, but not limited to, trust fees, brokerage and insurance
commissions and financial planning fees. Net Income shall also reflect all
expenses directly associated with the operations of the EFA division,
including, but not limited to, commissions, personnel, occupancy, general and
administrative expenses. Adjustments to Net Income shall reverse the effects
of inter-company revenue sharing arrangements and holding company pass
through expenses not directly attributed to the operations of the EFA
division.
5. GRANT OF OPTIONS TO MGIA PRINCIPALS.
(a) Options Granted as a Result of MGIA Referral
Accounts. Subject to and upon the terms and conditions set forth in
this Agreement, as of December 31st of each year during the term of
this Agreement, Enterbank hereby grants to each MGIA Principal who is
designated by MGIA as the principal responsible for an MGIA Referral
Account according to Section 8 below the number of options ("Annual
Options") calculated as set forth below.
If there is a Change in Control or if this Agreement is
terminated prior to the Termination Date (defined below), Enterbank
hereby grants to each designated MGIA Principal the number of Annual
Options earned from January 1 to the date of the Change in Control or
the Termination Date, as applicable, calculated as set forth below.
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For each MGIA Referral Account for which an MGIA Principal
is designated as the principal responsible for that Account, the MGIA
Principal will receive the following number of Annual Options with
respect to that Account:
Margin Contribution Rate
x Annual Average Balance
---------------------------------------------------------
= Margin Contribution
- Prior Year Margin Contribution
---------------------------------------------------------
= Margin Contribution Increase
/ Market Value Per Share as of December 31st
---------------------------------------------------------
= Number of Annual Options (rounded to the nearest
whole share)
As used herein, the above-referenced terms shall be defined as follows:
"Margin Contribution Rate" shall mean the rate established below.
Type of MGIA Referral Account Margin Contribution Rate
----------------------------- ------------------------
Loan 4.00%
Free Checking 4.00%
NOW Account 2.50%
Personal Money Market 0.50%
Commercial Money Market 0.50%
Investment Money Market 0.75%
Certificate of Deposit 0.25%
"Annual Average Balance" shall mean the aggregate daily sum of each
day's balance (as determined on the 15th and last days of each month)
of an MGIA Referral Account divided by the total number of days in the
year.
"Margin Contribution" shall mean the Margin Contribution Rate
multiplied by the Annual Average Balance.
"Prior Year Margin Contribution" shall mean the Margin Contribution for
the prior year.
"Margin Contribution Increase" shall mean the Margin Contribution less
the Prior Year Margin Contribution.
EXAMPLE: MGIA PRINCIPAL REFERS A CLIENT TO BANK WHO
BORROWS $1 MILLION FROM BANK ON JULY 1. THE LOAN IS DESIGNATED
AN " MGIA REFERRAL ACCOUNT" AND IT REMAINS OUTSTANDING UNTIL
REPAID BY THE CLIENT ON JULY 30TH (30 DAYS). ASSUME, FOR
PURPOSES OF THIS EXAMPLE ONLY, THAT THE MGIA PRINCIPAL'S MARGIN
CONTRIBUTION FOR THE PRIOR YEAR WAS $1,000 AND THAT THE MARKET
VALUE PER SHARE OF ENTERBANK STOCK AS OF DECEMBER 31ST IS
$30.00.
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ENTERBANK WOULD GRANT THE FOLLOWING NUMBER OF ANNUAL OPTIONS TO
MGIA PRINCIPAL AS OF DECEMBER 31ST:
0.04 (4.00% Margin Contribution Rate for loans)
x $82,191.78 (($1 million x 30 days)/ 365 days - Annual
Average Balance)
----------------------------------------------------------------
= $ 3,287.67 (Margin Contribution)
- $ 1,000.00 (Prior Year Margin Contribution)
----------------------------------------------------------------
= $ 2,287.67 (Margin Contribution Increase)
/ $ 30.00 (Market Value Per Share as of 12/31)
----------------------------------------------------------------
= 76 Annual Options
(b) Options Granted For Training Services. Subject to
and upon the terms and conditions set forth in this Agreement,
Enterbank hereby grants to those MGIA Principals as designated by MGIA
according to Section 8 below the following:
(i) on the Effective Date, options to purchase up
to an aggregate number of 20,000 shares of Enterbank's common
stock during the Option Term at the Option Price as of the
Effective Date ("Initial Optioned Shares").
(ii) on the date on which Enterprise Trust, a
division of EFA, reaches $100 million in assets under custody,
options to purchase up to an additional aggregate number of
20,000 shares of Enterbank's common stock during the Option Term
at the Option Price as of such date ("Second Optioned Shares").
(c) In the event that Enterbank or Bank terminates this
Agreement prior to the Termination Date (as defined below), Enterbank
hereby agrees to grant to those MGIA Principals designated by MGIA
according to Section 8 below, as of the Termination Date, options to
purchase the number of shares of Enterbank common stock ("Termination
Options") determined as follows:
(EFA Gross Margin for the four complete fiscal quarters
immediately preceding termination) x 17.5%
divided by the Market Value Per Share as of the Termination Date
----------
= Number of Termination Options (rounded to nearest whole
share)
(d) Anything in this Agreement to the contrary
notwithstanding, the maximum number of shares of the common stock of
Enterbank to be subject to options awarded hereunder shall not exceed
[200,000] (subject to adjustment to reflect any stock
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split, stock dividend, combination or other recapitalization of the
common stock of Enterbank subsequent to the date of this Agreement).
(e) Enterbank agrees that it shall reserve from its
authorized but unissued shares of common stock a sufficient number of
shares to permit the award and exercise of options issuable in
accordance with the foregoing.
6. EXERCISE PRICE. Each option to be issued and awarded as a
result of Section 5 shall be issued and evidenced by a Stock Option Agreement
in the form of Exhibit A attached hereto and shall provide for an exercise
price per share equal to the Market Value Per Share as of the date of grant
of the option. Notwithstanding the actual date of award of such Option and
execution of the related Stock Option Agreement, each such option shall bear
a date of grant as specified in Section 5 above.
7. OPTION TERM. For so long as an MGIA Principal remains a
principal of MGIA, options to purchase Optioned Shares held by that MGIA
Principal shall expire on the Termination Date, unless sooner terminated
pursuant to this Agreement. Upon termination of an MGIA Principal's
employment with MGIA, that Principal's options to purchase Optioned Shares
shall expire ninety (90) days after the date on which his or her employment
is terminated with MGIA.
8. ISSUANCE OF OPTIONS TO MGIA PRINCIPALS.
(a) MGIA shall provide to Enterbank a list of the MGIA
Principals to whom options are to be granted and the number of Optioned
Shares to be granted to each Principal on the list. Such allocation
and designation shall be made in the sole discretion of MGIA, having
due regard for the contributions of such MGIA Principals primarily
responsible for establishing MGIA Referral Accounts or who provided
training and consulting services to EFA or the Trust Division, as
applicable; provided, however, that the total number of individuals to
whom options are granted shall not exceed 35 individuals who are not
"accredited investors" as that term is defined in Regulation D under
the Securities Act of 1933. MGIA shall certify those Principals that
are accredited investors and shall provide to Enterbank such
Principals' social security numbers, residential address and other
information as Enterbank reasonably may request.
(b) Within thirty (30) days of receipt of MGIA's written
notice described above, Enterbank shall prepare, execute and deliver
Stock Option Agreements in the form of Exhibit A reflecting each MGIA
Principal's individual options.
(c) At the time of first issuance of an option to any
MGIA Principal in accordance with the terms of this Agreement,
Enterbank will deliver to such MGIA Principal a copy of its most recent
report on Form 10-K filed with the SEC pursuant to the Securities
Exchange Act of 1934, together with copies of all subsequent interim
reports filed under such Act. For so long as an MGIA Principal holds
any unexercised
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option issued pursuant to this Agreement, Enterbank shall deliver copies
of all subsequent filings made by it under Sections 12, 14 or 15 of the
Securities Exchange Act.
9. OPTIONS NON-TRANSFERABLE. These options shall be neither
transferable nor assignable by any MGIA Principal other than by will or by
the laws of descent and distribution, and may be exercised during an MGIA
Principal's lifetime only by such Principal.
10. VESTING. The Optioned Shares shall vest 20% per year on
the anniversary date of the date of grant of the options; provided that if
there is a Change in Control or if this Agreement is terminated prior to the
Termination Date (defined below), the Optioned Shares shall be fully vested
as of the Date of Change in Control or the Termination Date, as applicable.
11. DATES OF EXERCISE. Pursuant to the provisions of this
Agreement, an MGIA Principal may purchase any or all of the Optioned Shares
that are vested at any time, or from time to time, during the Option Term
after the date of grant.
12. PRIVILEGE OF STOCK OWNERSHIP. As holder of an option, an
MGIA Principal shall not have any of the rights of a shareholder with respect
to the Optioned Shares until such Principal has exercised the option and paid
the Option Price.
13. TERM OF THE AGREEMENT; TERMINATION DATE
(a) Term. This Agreement shall be for a term of ten
years commencing on the date hereof and expiring on January 1, 2009
("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 the
Bank shall be subject to a Change of Control and Enterbank pays
to MGIA the compensation set forth in Section 4(b), or (ii) at
the election of Enterbank or the 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.
(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.
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14. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PARTIES.
(a) MGIA represents, warrants and agrees that:
(i) MGIA is a corporation duly organized and
validly existing under the laws of the State of Missouri with
full corporate power and authority to execute, deliver and
perform this Agreement.
(ii) The execution, delivery and performance of this
Agreement by MGIA will not violate or conflict with any provision
of, or constitute a default under, any law, or any order, writ,
injunction, decree of any court or other governmental agency, or
any contract, agreement or instrument to which MGIA is a party or
by which MGIA is bound, or constitute an event which, with the
lapse of time or action by a third party or both, could result in
the creation of any lien, charge or encumbrance upon any of the
assets or properties of MGIA.
(iii) The sole director of MGIA has authorized and
approved the execution and delivery of this Agreement and the
transactions contemplated hereby. This Agreement constitutes a
valid and binding obligation of MGIA in accordance with its
terms.
(iv) MGIA is duly registered with the Securities and
Exchange Commission as an investment adviser under the Investment
Advisers Act of 1940, as amended, and has heretofore provided to
Enterbank a true, correct and complete copy of Part II of its
registration statement on Form ADV as amended to date.
(b) Enterbank represents, warrants and agrees that:
(i) Enterbank is a corporation duly organized and
validly existing under the laws of the State of Delaware with
full corporate power and authority to execute, deliver and
perform this Agreement. Enterbank has sufficient authorized but
unissued shares of its common stock for the purpose of the
options to be issued under this Agreement.
(ii) The execution, delivery and performance of this
Agreement by Enterbank will not violate or conflict with any
provision of, or constitute a default under, any law, or any
order, writ, injunction, decree of any court or other
governmental agency, or any contract, agreement or instrument to
which Enterbank is a party or by which Enterbank or any of its
subsidiaries is a party or by which any of them is bound or
constitute an event which, with the lapse of time or action by a
third party or both, could result in the creation of any lien,
charge or encumbrance upon any of the assets or properties of
Enterbank.
(iii) The Board of Directors of Enterbank has
authorized and approved the execution and delivery of this
Agreement and the transactions
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contemplated hereby. This Agreement constitutes a valid and
binding obligation of Enterbank in accordance with its terms.
(iv) Enterbank has heretofore delivered to MGIA
true, correct and complete copies of all filings required of it
under section 15(d) of the Securities Exchange Act of 1934, as
amended. Enterbank covenants and agrees that during the term of
this Agreement and for so long thereafter as any option issued
pursuant hereto is outstanding, it will either (i) remain subject
to and use its best efforts to file in a timely manner all
reports required under section 15(d) of the Securities Exchange
Act of 1934, as amended, or it (ii) will cause its common stock
to be registered as a class of securities under section 12 of the
Securities Exchange Act of 1934, as amended, and in such event
will use its best efforts to file in a timely manner all reports
required under section 13 or 14 of the Securities Act of 1934.
(c) Bank represents, warrants and agrees that:
(i) Bank is a banking corporation duly organized
and validly existing under the laws of the State of Missouri with
full corporate power and authority to execute, deliver and
perform this Agreement.
(ii) The execution, delivery and performance of this
Agreement by Bank will not violate or conflict with any provision
of, or constitute a default under, any law, or any order, writ,
injunction, decree or any court or other governmental agency, or
any contract, agreement or instrument to which Bank is a party or
by which Bank is bound or constitute an event which, with the
lapse of time or action by a third party or both, could result in
the creation of any lien, charge or encumbrance upon any of the
assets or properties of Bank.
(iii) The Board of Directors of Bank has authorized
and approved the execution and delivery of this Agreement and the
transactions contemplated hereby. This Agreement constitutes a
valid and binding obligation of Bank in accordance with its
terms.
15. INDEMNIFICATION.
(a) By Enterbank and Bank. Enterbank and the Bank shall
jointly and severally defend, reimburse, indemnify and hold harmless
MGIA and its affiliates, officers, directors, employees and agents
against any and all losses, claims, damages, liabilities, actions,
costs or expenses, joint or several, to which any indemnified party may
become subject (including any legal or other expenses reasonably
incurred by it in connection with investigating any claim against it
and any amounts paid in settlement or compromise, provided the Bank
shall have given its prior written approval of such settlement or
compromise), insofar as such losses, claims, damages, liabilities,
actions, costs or expenses arise in connection with or are based upon:
(i) the breach by the Bank of any representation, warranty or covenant
made by Enterbank or the Bank herein; (ii) any act or omission to act,
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whether negligent, reckless or intentional, by Enterbank or the Bank or
their employees or affiliates in connection with the subject of this
Agreement; or (iii) the failure of Enterbank or the Bank or their
affiliates to or employees to comply with all banking laws, rules and
regulations applicable to this Agreement.
(b) By MGIA. MGIA shall defend, reimburse, indemnify and
hold harmless Enterbank and the Bank, their affiliates, officers,
directors and employees against any and all losses, claims, damages,
liabilities, actions, costs or expenses, joint or several, to which any
indemnified party may become subject (including any legal or other
expenses reasonably incurred by it in connection with investigating any
claim against it and any amounts paid in settlement or compromise,
provided MGIA shall have given its prior written approval of such
settlement or compromise), insofar as such losses, claims, damages,
liabilities, actions, costs or expenses arise in connection with or are
based upon: (i) the breach by MGIA of any representation, warranty or
covenant made by MGIA herein; or (ii) any act or omission to act,
whether negligent, reckless or intentional, by MGIA or its employees or
affiliates under this Agreement.
(c) Notice of Indemnification. In the event any legal
proceeding is threatened or instituted or any claim or demand is
asserted by any person for which payment may be sought by one party
hereto from the other party under the provisions of this section, the
party seeking indemnification (the "Indemnitee") will promptly cause
written notice of the assertion of any such claim of which it has
knowledge to be forwarded to the other party (the "Indemnitor"). Any
notice of a claim will state specifically the representation, warranty
or covenant with respect to which the claim is made (if applicable),
the facts giving rise to an alleged basis for the claim and the amount
of the liability asserted against the Indemnitor by reason of the
claim.
(d) Indemnification Procedure for Third-Party Claims. In
the event of the initiation of any legal proceeding against an
Indemnitee by a third party, the Indemnitor will have the absolute
right after the receipt of notice, at its option and at its own
expense, to be represented by counsel of its choice, and to defend
against, negotiate, settle or otherwise deal with any proceeding, claim
or demand which relates to any loss, liability or damage indemnified
against hereunder; provided, however, that the Indemnitee may
participate in any such proceeding, with counsel of its choice and at
its expense. The parties hereto agree to cooperate fully with each
other in connection with the defense, negotiation or settlement of any
such legal proceeding, claim or demand. To the extent the Indemnitor
elects not to defend such proceeding, claim or demand, and the
Indemnitee defends against or otherwise deals with any such proceeding,
claim or demand, the Indemnitee may retain counsel, at the Indemnitor's
expense, and control the defense of such proceeding. Neither the
Indemnitor nor the Indemnitee may settle any such proceeding without
the consent of the other party, such consent not to be unreasonably
withheld. After any final judgment or award has been rendered by a
court, arbitration board or administrative agency of competent
jurisdiction and the time in which to appeal therefrom has expired, or
a settlement has been consummated, or the Indemnitee and the Indemnitor
have arrived at a mutually binding agreement with respect to each
separate matter alleged to be indemnified by the Indemnitor
- 13 -
14
hereunder, the Indemnitee will forward to the Indemnitor notice of any
sums due and owing by it with respect to such matter and the Indemnitor
will pay all of the sums so owing to the Indemnitee by wire transfer,
certified or bank cashier's check within thirty (30) days after the date
of such notice.
16. DISPUTE RESOLUTION. The parties shall establish a Joint
Resolution Committee to resolve any dispute arising out of this Agreement.
Such Committee initially shall consist of Xxxxx X. Xxxxxx and one other
representative designated by MGIA, and Xxxx X. Xxxxx and one other
representative designated by the Bank. Either MGIA or the Bank shall have
the right, from time to time, to change its representation on the Committee
by written notice. The Joint Resolution Committee shall have access to such
financial records of Enterbank as it shall deem reasonably necessary in order
to settle disputes regarding financial calculations as set forth in the
Agreement relevant to compensation to be paid to MGIA or the number of
options to be granted to MGIA Principals and Enterbank agrees to provide such
information upon request. Each member of the Committee, by serving thereon,
agrees to maintain the confidentiality of such information.
In addition to the duties set forth above, the Joint Resolution
Committee shall function to review the determination by the Chief Financial
Officer of the Bank of the EFA Gross Margin and other financial calculations
described in this Agreement, and to certify such results to the President of
MGIA and the Chief Executive Officer of the Bank.
In the event that the Joint Resolution Committee shall be divided
and unable to resolve any dispute, such dispute shall be resolved as follows:
(a) If the dispute relates to the determination of the EFA Gross Margin or
other financial calculation, the dispute will be referred to an independent
accountant selected by the Joint Resolution Committee, and the determination
of such firm shall be conclusive; or (b) if the dispute relates to any other
matter arising out of the Agreement, the dispute will be resolved by an
abbreviated arbitration process pursuant to which MGIA and the Bank shall
agree upon a single arbitrator and the decision of that arbitrator shall be
final. In the event that MGIA and the Bank are unable to agree upon a single
arbitrator, each of MGIA and the Bank shall appoint one arbitrator and the
arbitrators so selected will appoint a third arbitrator who will serve as
chairman of the panel. Any arbitration shall be conducted in accordance with
the rules of the American Arbitration Association, unless otherwise agreed by
the parties.
17. MISCELLANEOUS.
(a) Entire Agreement. This Agreement, together with the
Exhibits attached hereto, constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all
prior agreements or understandings of the parties hereto.
(b) Amendments. This Agreement may be amended by the
parties hereto at any time by action taken by, or pursuant to authority
delegated by, their respective Boards of Directors, provided, however
that no amendment which shall alter the form or
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15
terms of any option hereunder shall affect the terms or construction of
any option issued prior to the date of such amendment without the consent
of the optionee.
(c) Captions and Headings. All headings or captions
contained in this Agreement or in any Exhibit attached hereto are for
convenience of reference only and shall not be deemed a part of this
Agreement and shall not affect the meaning or interpretation of the
Agreement.
(d) No Third-Party Rights. Except for the rights of the
optionees under any option granted pursuant hereto and except for the
treatment of officers, directors and employees of the parties as
potential indemnitees in accordance with the terms of Section 15, no
provision of this Agreement shall be deemed or construed in any way to
result in the creation of any rights or obligations in any person or
entity not a party to this Agreement.
(e) Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original but
all of which together shall constitute a single instrument.
(f) Governing Law. Except regarding matters controlled
by federal law, this Agreement shall be governed and construed in
accordance with the laws of the State of Missouri excluding any choice
of law rules which may direct the application of the law of another
state; provided, however, that matters of law concerning the internal
corporate affairs of Enterbank shall be governed by the general
corporation laws of its state of incorporation.
(g) Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns; provided, however, that except
by operation of law no party may assign any of its rights, duties or
obligations hereunder without the prior written consent of each other
party; and provided, further, that no assignment of this Agreement or
any rights hereunder shall relieve the assigning party of any of its
obligations or liability hereunder.
(h) Notices. Any notice required or permitted under this
Agreement shall be in writing, and either hand delivered mailed by
certified mail, return receipt requested, to the following addresses:
Moneta Group Investment Advisors, Inc.
000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
- 00 -
00
Xxxxxxxxx Holdings, Inc.
Enterprise Bank of Clayton
000 X. Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Chief Financial Officer
Notice shall be deemed given on the date of receipt, in the case
of hand delivery, or on the date delivered, as shown on the U.S. Postal
Service return receipt, in the case of mailing. Any party may change
the address to which notice is to be delivered to it under this
Agreement by giving notice to that effect to the other parties hereto
in the manner provided in this Section.
(i) Severability. If any provision of this Agreement is
found or declared to be invalid or unenforceable by any court or other
competent governmental regulatory agency having jurisdiction, such
finding or declaration shall not invalidate any other provision hereof
and this Agreement shall thereafter continue in full force and effect
except that such invalid or unenforceable provision, and (if necessary)
other provisions(s) thereof, shall be reformed by a court of competent
jurisdiction so as to effect, insofar as is practicable, the intention
of the parties as set forth in this Agreement, provided that if such
court is unwilling or unable to effect such reformation, the invalid or
unenforceable provision shall be deemed deleted to the same extent as
if it had never existed.
(ii) Expenses. Each party to this Agreement shall pay its
respective expenses incurred in connection with the preparation and
performance of this Agreement and the transactions contemplated hereby.
IN WITNESS WHEREOF, MGIA, Bank and Enterbank each have caused this
Agreement to be executed in duplicate on its behalf by its duly authorized
officer, all as of the day and year indicated above.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED
BY THE PARTIES.
MONETA GROUP INVESTMENT ADVISORS, INC.
By: -----------------------------------
Xxxxx X. Xxxxxx, President
Address:
000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
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17
ENTERBANK HOLDINGS, INC.
By: -----------------------------------
Xxxxx X. Xxxxxx, Chief Financial Officer
Address:
000 Xxxxx Xxxxxxx
Xx. Xxxxx, XX 00000
ENTERPRISE BANK OF CLAYTON
By: -----------------------------------
Xxxx X. Xxxxx, President
Address:
000 Xxxxx Xxxxxxx
Xx. Xxxxx, XX 00000
The undersigned hereby consents to the revocation and termination
of the Moneta Bank Marketing and Solicitation Agreement dated October 31,
1997:
X.X. XXXXXXXX & CO., INC.
By: -----------------------------------
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18
EXHIBIT A
STOCK OPTION AGREEMENT
THIS AGREEMENT is made this day of , , by and
---- ----------- -----
between Enterbank Holdings, Inc. (the "Company") and
("You" or "Your").
--------------------------------
RECITALS:
A. You are a principal of Moneta Group Investment Advisors, Inc.
("MGIA Principal"). The Company and MGIA have entered into a Customer
Referral and Support Agreement dated February 26, 1999 pursuant to which MGIA
Principals have agreed to provide account referral and training and
consulting services to subsidiaries of the Company.
B. The Company has entered into this Stock Option Agreement for the
purpose of securing for itself and its affiliates the benefits of the
incentive inherent in common stock ownership by MGIA Principals whose
services under the Customer Referral and Support Agreement are important to
the Company's future growth and continued financial success; and affording
You the opportunity to obtain or increase a proprietary interest in the
Company and, thereby, to have an opportunity to share in its success.
C. The granted option shall be a nonqualified stock option which
does not satisfy the requirements of Section 422 of the Internal Revenue
Code.
NOW, THEREFORE, it is hereby agreed as follows:
1. DEFINITIONS. When used in this Agreement, the following terms
shall have the following meanings:
(a) "AGREEMENT" shall mean this Stock Option Agreement.
(b) "GRANT DATE" shall mean ,
---------- ------
(c) "MARKET VALUE PER SHARE" of a share of Enterbank's common
stock shall mean the following:
(i) if the common stock of Enterbank is traded on a
national securities exchange or if such stock is traded on the
over-the-counter market maintained by NASDAQ, Inc., then the Market
Value Per Share shall be equal to the reported closing price per share
of such stock as of the applicable date; or
(ii) if the common stock of Enterbank is not traded as
provided in (i) above, and Enterbank has granted Stock Options or Stock
Appreciation Rights to
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19
employees or directors within thirty (30) days preceding the applicable
date, the Market Value Per Share shall be the Market Value Per Share as
used for purposes of the last such grant; or
(iii) if not traded as provided in (i), and (ii) above is
not applicable, then the Market Value Per Share shall be determined in
good faith by the Board of Directors of Enterbank in consultation with
the firm of X.X. Xxxxx & Co., or another broker-dealer as may be agreed
upon by Enterbank and MGIA.
(d) "OPTION PRICE" shall mean $ .
--------
(e) "OPTIONED SHARES" shall mean the shares You are entitled to
purchase pursuant to this Agreement.
2. GRANT OF OPTION. Subject to and upon the terms and conditions
set forth in this Agreement, the Company hereby grants to You, as of the
Grant Date, an option to purchase up to shares of the Company's common
-----
stock during the Option Term at the Option Price.
3. OPTION TERM. For so long as You remain a principal of MGIA, this
option shall expire on January 1, 2009, unless sooner terminated pursuant to
the Customer Referral and Support Agreement. Upon termination of Your
employment with MGIA, this option shall expire ninety (90) days after the
date on which Your employment is terminated with MGIA.
4. OPTION NONTRANSFERABLE. This option shall be neither
transferable nor assignable by You other than by will or by the laws of
descent and distribution, and may be exercised during Your lifetime only by
You.
5. VESTING. The Optioned Shares shall vest 20% each year on the
anniversary date of the Grant Date; provided that if there is a Change of
Control, as defined in Section 1(b) of the Customer Referral and Support
Agreement dated February 26, 1999, by and between the Company, Moneta Group
Investment Advisors, Inc. and Enterprise Bank of Xxxxxxx (the "Customer
Referral and Support Agreement"); or if the Customer Referral and Support
Agreement is terminated prior to January 1, 2009 (the "Termination Date"),
the Optioned shares shall be fully vested as of the date of the Change in
Control or Termination Date.
6. DATES OF EXERCISE. Pursuant to the provisions of this Agreement,
You may purchase any or all of the Optioned Shares that have vested at any
time, or from time to time, during the Option Term after the Grant Date.
7. ADJUSTMENT IN OPTIONED SHARES.
(a) In the event any change is made to the common stock of the
Company issuable under this Agreement by reason of any stock split,
stock dividend, combination of shares, or other change affecting the
outstanding common stock as a class without receipt of consideration,
then appropriate adjustments will be made to (i) the total number
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20
of Optioned Shares and (ii) the Option Price payable per share in order
to reflect such change and thereby preclude a dilution or enlargement of
benefits hereunder.
(b) If the Company is the surviving entity in any merger or
other business combination, then this option, if outstanding under this
Agreement immediately after such merger or other business combination,
shall be appropriately adjusted to apply and pertain to the number and
class of securities which would be issuable to You in the consummation
of such merger or business combination if the option were exercised
immediately prior to such merger or business combination, and
appropriate adjustments shall be made to the Option Price payable per
share, provided the aggregate Option Price payable hereunder shall
remain the same.
8. PRIVILEGE OF STOCK OWNERSHIP. As holder of this option, You
shall not have any of the rights of a shareholder with respect to the
Optioned Shares until You have exercised the option and paid the Option
Price.
9. MANNER OF EXERCISING OPTION.
(a) In order to exercise this option with respect to all or any
part of the Optioned Shares for which this option is at the time exercisable,
You (or in the case of exercise after Your death, Your executor,
administrator, heir or legatee, as the case may be) must take the following
actions:
(i) Deliver written notice to the Board of Directors of
the Company in advance of the exercise date;
(ii) Execute and deliver to the President or the Secretary
of the Company a Purchase Agreement;
(iii) Pay the aggregate Option Price for the purchased
shares in one or more of the following alternative forms:
(A) full payment, in cash or cash equivalents; or
(B) any other form which the Company may in its
discretion approve at the time of exercise of this option;
and
(iv) Furnish to the Company appropriate documentation that
the person or persons exercising the option, if other than You,
have the right to exercise this option.
(b) Options shall be deemed to have been exercised with respect
to the number of Optioned Shares specified in the Purchase Agreement at
the end of the calendar year in which the executed Purchase Agreement
for such shares shall have been delivered to the Company. Payment of
the Option Price shall immediately become due
- 3 -
21
and shall accompany the Purchase Agreement. The Market Value Per Share
of shares tendered in payment of the Option Price shall be determined as
of such date. As soon thereafter as practical, the Company shall mail or
deliver to You or to the other person or persons exercising this option a
certificate or certificates (which may be a certificate of interest in
any applicable voting trust) representing the shares so purchased and
paid for.
10. COMPLIANCE WITH LAWS AND REGULATIONS.
(a) The exercise of this option and the issuance of Optioned
Shares upon such exercise shall be subject to compliance by the Company
and You with all applicable requirements of law relating thereto.
(b) In connection with the exercise of this option, You shall
execute and deliver to the Company such representations in writing as
may be requested by the Company in order for it to comply with the
applicable requirements of federal and state securities laws.
11. SUCCESSORS AND ASSIGNS. Except to the extent otherwise provided
in Paragraph , the provisions of this Agreement shall inure to the benefit
of, and be binding upon, Your successors, administrators, heirs, legal
representatives and assigns and the successors and assigns of the Company.
12. NO EMPLOYMENT OR SERVICE CONTRACT. No provision of this Agreement
shall be construed to grant You status as an employee of the Company or its
subsidiary corporations for any period of specific duration.
13. NOTICES. Any and all notices referred to or relating to this
Agreement shall be furnished in writing and delivered in person or sent by
registered mail to the representative parties at the addresses following
their signatures to this Agreement, or at such other address as may be set
forth in a notice in writing to the sending party.
14. WITHHOLDING. If You acquire Optioned Shares, the Company shall
not deliver or otherwise make such shares available to You until You pay to
the Company in cash (or any other form acceptable to the Company) the amount
necessary to enable the Company to remit to the appropriate government entity
or entities on Your behalf the amount required to be withheld from Your wages
with respect to such transaction.
15. CONSTRUCTION. This Agreement and the option evidenced hereby are
in all respects limited by and subject to the express terms and provisions of
this Agreement. All decisions of the Company with respect to any question or
issue arising under this Agreement shall be conclusive and binding on all
persons having an interest in this option.
16. GOVERNING LAW. The interpretation, performance, and enforcement
of this Agreement shall be governed by the laws of the State of Missouri.
- 4 -
22
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed in duplicate on its behalf by its duly authorized officer and You
have also executed this Agreement in duplicate, all as of the day and year
indicated above.
ENTERBANK HOLDINGS, INC.
By: -----------------------------------
President
Address:
000 Xxxxx Xxxxxxx
Xx. Xxxxx, XX 00000
------------------------------------------
You (Grantee)
Address: ------------------------------
------------------------------
------------------------------
- 5 -
23
NOTICE
------
Schedules A and B referenced in the Customer Referral and Support Agreement
dated February 26, 1999 by and among Moneta Group Investment Advisors, Inc.
and Enterbank Holdings, Inc. are omitted. Registrant will furnish
supplementally a copy of these Schedules to the Securities and Exchange
Commision upon request.
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