EXHIBIT 10.9
AMENDMENT AND RESTATEMENT OF THE
ENTERPRISE FINANCIAL SERVICES CORP.
DEFERRED COMPENSATION PLAN I
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Article I
Establishment of Plan
1.1. Purpose . The Board of Directors of Enterprise Financial
Services Corp., a Delaware corporation, established the Plan
originally effective December 20, 1999 to provide deferred
compensation benefits to selected executives of the
Corporation.
1.2. Amendment and Restatement
. The Plan is amended and restated
as set forth herein to comply with Code Section 409A and to make
other changes.
1.3. Effective Date and Term . The Corporation adopts this amended and
restated Plan effective as of January 1, 2005. Deferral Accounts to
which Annual Deferrals under Section 4.1 and Corporation credits
under Section 4.4 were credited with respect to Deferral Periods
ending prior to January 1, 2005, including all earnings (including
earnings credited after December 31, 2004) credited to such
Deferral Accounts, shall to the extent such amounts were vested as
of December 31, 2004 remain subject to the terms of the Plan
document in effect on December 31, 2004 and this Amendment and
Restatement of the Plan document shall not apply to such Deferral
Accounts.
1.4. Applicability of ERISA . This Plan is intended to be an unfunded,
top-hat plan maintained primarily for the purpose of providing
deferred compensation to a select group of management or highly
compensated employees within the meaning of ERISA.
Article II
Definitions
As
used within this document, the following words and phrases have the
meanings described in this Article II unless a different meaning is
required by the context. Some of the words and phrases used in the
Plan are not defined in this Article II, but for convenience, are
defined as they are introduced into the text. Words in the
masculine gender shall be deemed to include the feminine gender.
Any headings used are included for ease of reference only, and are
not to be construed so as to alter any of the terms of the
Plan.
2.1. Affiliated Company . Any corporation which is a member of the same
controlled group of corporations determined by Code Section 1563(a)
[without regard to Code Section 1563(a)(4) and (e)(3)(C)] of which
the Company is a member.
2.2. Annual Deferral . The amount of Basic Salary and/or Bonuses
which the Participant elects to defer in each Deferral Period
pursuant to Article 4.1 of the Plan.
2.3. Basic Salary . A Participant’s base, annual salary for
the applicable Plan Year.
2.4. Beneficiary . Individual(s) or entit(ies) designated by a
Participant in accordance with Section 14.6.
2.5. Board . The Board of Directors of the
Corporation.
2.6. Bonus . Earnings and incentive compensation awarded to
a Participant at the option of the Corporation which may or may not
occur during each Plan Year.
2.7. Code .
The Internal Revenue Code of 1986, as amended. References to a
section of the Code shall include that section and any comparable
section or sections of any future legislation that amends,
supplements or supersedes such section.
2.8. Committee . The Compensation Committee of the
Board.
2.9. Corporation . Enterprise Financial Services Corp. or, where
the context so admits or requires, an Affiliated
Company.
2.10. Deferral Account or Accounts
. The account or accounts
established for a Participant pursuant to Section 5.1 of the
Plan.
2.11. Deferral Election . The election made by the Participant pursuant
to Section 4.1 of the Plan.
2.12. Deferral Period . The Plan Year.
2.13. Disability . The disability of a Participant within the
meaning of Code Section 409A(a)(2)(C).
2.14. Effective Date . January 1, 2005.
2.15. Eligible Employee . An employee of the Corporation or an
Affiliated Company who is designated by the Board as an Eligible
Employee.
2.16. ERISA . The Employee Retirement Income Security Act of
1974, as amended.
2.17. Participant . Any individual who becomes eligible to
participate in the Plan pursuant to Article III of the
Plan.
2.18. Participant Agreement and Deferral Election
Form . The written
agreement to defer Basic Salary and/or Bonuses made by the
Participant. Such written agreement shall be in a form designated
by the Corporation. In order to revoke a Participant Agreement and
Deferral Election Form, the Participant must notify the Committee
and the Plan Administrator of such revocation in writing and such
revocation shall not be effective until January 1 of the Plan Year
following the Plan Year in which such notification is provided to
the Committee.
2.19. Plan .
The Enterprise Financial Services Corp. Deferred Compensation Plan
I, as amended and restated.
2.20. Plan Administrator . The Corporation unless the Corporation
designates another individual, committee or entity to hold the
position of the Plan Administrator.
2.21. Plan Year . The 12-month period beginning each January 1
and ending on the following December 31.
2.22. Rabbi Trust . A grantor trust that conforms to the terms of
the model trust set forth in Internal Revenue Service Revenue
Procedure 92-64 (or any Revenue Procedure or other Internal Revenue
Service publication that supersedes Revenue Procedure 92-64), the
assets of which shall be subject to the claims of the
Corporation’s creditors in the event of the
Corporation’s insolvency, and the creation of which does not
trigger inclusion of any amounts deferred under this plan in the
income of Participants.
2.23. Retirement Date . The first day of the first month coincident
with or next following the date on which a Participant reaches age
65 and has a Separation from Service. If a Participant continues
employment with Corporation beyond age 65, the Retirement Date is
the first day of the first month coincident with or next following
the date on which Participant has a Separation from
Service.
2.24. Separation from Service . Termination of employment with the Company and
all Affiliated Companies determined in accordance with the
provisions of Treasury Regulation 1.409A-1(h).
2.25. Valuation Date . Each business day of the Plan Year.
2.26. Year of Service . Each consecutive twelve (12) month period
during which a Participant is continually employed by the
Corporation.
Article III
Eligibility and Participation
3.1. Participation – Eligibility and Initial
Period . Participation in
the Plan is open only to Eligible Employees. Any employee first
becoming an Eligible Employee ( e.g ., a new hire or
promoted employee) shall become a Participant as of January 1 of
the Deferral Period following the Deferral Period in which the
Eligible Employee submits a properly completed and executed
Participation Agreement and Deferral Election Form with the Plan
Administrator, provided that the employee is still an Eligible
Employee as of such date.
3.2. Participation – Subsequent Entry into
Plan . An Eligible
Employee who fails or elects not to participate at the time of
initial eligibility as set forth in Section 3.1 remains eligible to
become a Participant in subsequent Plan Years as long as he
continues his status as an Eligible Employee. In such event, the
Eligible Employee may become a Participant effective as of January
1 of the Deferral Period following the Deferral Period in which the
Eligible Employee submits a properly completed and executed
Participation Agreement and Deferral Election Form.
Article IV
Contributions
4.1. Deferral Election . Prior to the first day of a Deferral Period
for which a Deferral Election is applicable, an Eligible Employee
shall file with the Committee a Participation Agreement and
Deferral Election Form indicating the amount of Annual Deferrals
for such Deferral Period. After the Deferral Period commences, such
Deferral Election is irrevocable and shall continue for the entire
Deferral Period, except that it shall terminate upon the
Participant’s Separation from Service.
4.2. Maximum Deferral Election
. A Participant may elect to defer
up to twenty-five percent (25%) of Basic Salary and/or up to one
hundred (100%) of Bonuses earned during a Deferral Period. A
Deferral Election is automatically reduced if the Committee
determines that such action is necessary to meet Federal or State
legal requirements.
4.3. Minimum Deferral Election
. A Participant must elect to defer
at least $2,400 during the Deferral Period from Basic Salary,
Bonuses, or a combination of Basic Salary and Bonuses. If such
amount is not elected, no Annual Deferral may be made with respect
to such Deferral Period.
4.4. Corporation Credits . The Corporation may, in its sole discretion,
declare an amount to be credited to a Participant’s Deferral
Account.
Article V
Accounts
5.1. Deferral Accounts . Solely for recordkeeping purposes, the Plan
Administrator shall establish a Deferral Account for each
Participant for each Plan Year for which the Participant has made a
Deferral Election. A Participant’s Deferral Account for a
Deferral Period is (i) credited with the Annual Deferrals selected
by him under Section 4.1, (ii) credited with amounts credited on
his behalf by the Corporation under Section 4.4, (iii) credited (or
charged, as the case may be) with the hypothetical or deemed
investment earnings and losses determined pursuant to Section 5.3,
and (iv) charged with distributions made to or with respect to the
Participant and or his Beneficiary or Beneficiaries.
5.2. Crediting of Deferral Accounts
. Annual Deferrals attributable to a
Participant’s Basic Salary under Section 4.1 are credited to
a Participant’s Deferral Account as of the date on which such
contributions are withheld from his Basic Salary. Annual Deferrals
attributable to Bonuses under Section 4.1 are credited to a
Participant’s Deferral Account as of the date on which the
contribution would have otherwise been paid to the Participant.
Amounts under Section 4.4 are credited to the Participant’s
Deferral Account as of the date declared by the Corporation. Any
distribution with respect to a Deferral Account is charged to that
Account as of the date such payment is made by the Corporation or
the trustee of any Rabbi Trust established for the Plan.
5.3. Earning Credits or Losses
. Amounts credited to a Deferral
Account are credited with deemed net income, gain and loss,
including the deemed net unrealized gain and loss based on
hypothetical investment directions made by the Participant with
respect to his Deferral Account on a form designated by the
Corporation, in accordance with investment options and procedures
adopted by the Corporation in its sole discretion, from time to
time. Such earnings continue to accrue during any period in which
installments are paid pursuant to Article VII.
5.4. Hypothetical Nature of Accounts .
The Plan constitutes a mere promise by the Corporation to make the
benefit payments in the future. Any Deferral Account established
for a Participant under this Article V is hypothetical in nature
and is only maintained for the Corporation’s recordkeeping
purposes so that any contributions and deemed investment earnings
and losses on such amounts can be credited (or charged, as the case
may be). Neither the Plan nor any of the Deferred Accounts (or
subaccounts) or shall hold any actual funds or assets except as
otherwise provided under a Rabbi Trust. The right of any individual
or entity to receive one or more payments under the Plan is an
unsecured claim against the general assets of the Corporation. Any
liability of the Corporation to any Participant, former
Participant, or Beneficiary with respect to a right to payment is
based solely upon contractual obligations created by the Plan. The
Corporation, the Board, the Committee and any individual or entity
is or are not to be deemed to be a trustee or trustees of any
amounts to be paid under the Plan. Nothing contained in the Plan,
and no action taken pursuant to its provisions, creates or is to be
construed to create a trust of any kind, or a fiduciary
relationship, between the Corporation and a Participant, former
Participant, Beneficiary, or any other individual or entity. The
Corporation may, in its sole discretion, establish a Rabbi Trust as
a vehicle in which to place funds with respect to this Plan. The
Corporation does not in any way guarantee any Participant’s
Deferral Account against loss or depreciation, whether caused by
poor investment performance, insolvency of a deemed investment or
by any other event or occurrence. In no event shall an employee,
officer, director, or stockholder of the Corporation be liable to
any individual or entity on account of any claim arising by reason
of the Plan provisions or any instrument or instruments
implementing its provisions, or for the failure of any Participant,
Beneficiary or other individual or entity to be entitled to any
particular tax consequences with respect to the Plan or any credit
or payment thereunder.
5.5. Statement of Deferral Accounts . The
Plan Administrator shall provide to each Participant quarterly
statements setting forth the value of the Deferral Accounts
maintained for such Participant.
Article VI
Vesting
6.1. Vesting . The Corporation’s credits to a
Participant’s Deferral Accounts under Section 4.4 and any
deemed investment earnings attributable to such credits become one
hundred percent (100%) vested and non-forfeitable when the
Participant has five Years of Service with the Corporation. Prior
to the time a Participant has five Years of Service with the
Corporation, the Corporation’s credits to his Deferral
Accounts under Section 4.4 and any deemed earnings attributable to
such contributions are zero percent (0%) vested. Notwithstanding
anything in this Section 6.1 to the contrary, a Participant becomes
one hundred percent (100%) vested in the Corporation’s
credits to his Deferral Accounts under Section 4.4, including any
deemed investment earnings attributable to such amounts, upon his
death or Disability while he is actively employed by the
Corporation. All other amounts credited to a Participant’s
Deferral Accounts are one hundred percent (100%) vested at all
times.
Article VII
Benefits
7.1. Retirement Date . Unless benefits have commenced pursuant to
another section in this Article VII, the amount of a
Participant’s benefits under this Plan are based on the
vested amount credited to his Deferral Accounts as of the Valuation
Date coinciding with his Retirement Date or, if no Valuation Date
coincides with his Retirement Date, as of the Valuation Date which
first occurs after his Retirement Date. Payment of amounts under
this Section shall commence within thirty (30) days of the
Participant’s Retirement Date in accordance with the payment
methods elected by the Participant on his Participation Agreement
and Deferral Election Forms.
7.2. Disability . If a Participant suffers a Disability while
employed with the Corporation and before he is otherwise entitled
to benefits under this Article, he receives the vested amount
credited to his Deferral Accounts as of the Valuation Date
coinciding with the date on which the Participant incurs the
Disability or, if no Valuation Date coincides with the date on
which he incurs the Disability, as of the Valuation Date which
first occurs after the date upon which he incurs a Disability.
Payment of any amount under this Section commences within thirty
(30) days of when the Participant incurs the Disability in
accordance with the payment method elected by the Participant on
his Participation Agreement and Deferral Election Form.
7.3. Pre-Retirement Survivor Benefit
. If a Participant dies before
becoming entitled to benefits under this Article, the Beneficiary
or Beneficiaries designated under Section 14.6, is or are paid, in
a single, lump sum, a pre-retirement survivor benefit equal to the
vested amount credited to the Participant’s Deferral Accounts
as of the Valuation Date coinciding with the date of the
Participant’s death or, if no Valuation Date coincides with
his date of death, as of the Valuation Date which first occurs
after his date of death. Payment of any amount under this Section
shall be made within thirty (30) days of the Participant’s
death, or if later, within thirty (30) days of when the Committee
receives notification of or otherwise confirms the
Participant’s death.
7.4. Post-Retirement Survivor Benefit
. If a Participant dies after
benefits have commenced, but prior to receiving complete payment of
benefits under this Article, the Beneficiary or Beneficiaries
designated under Section 14.6, shall receive, in a single, lump
sum, the vested amount credited to the Participant’s Deferral
Accounts as of the Valuation Date coinciding with the date of the
Participant’s death or, if no Valuation Date coincides with
his date of death, as of the Valuation Date which first occurs
after his date of death. Payment of any amount under this Section
shall be made within thirty (30) days of the Participant’s
death, or if later, within thirty (30) days of when the Committee
receives notification of or otherwise confirms the
Participant’s death.
7.5. Termination . If a Participant has a Separation from Service
before he becomes entitled to receive benefits by reason of any of
the above Sections, he shall receive, in a single, lump sum, the
vested amount credited to his Deferral Accounts as of the Valuation
Date coinciding with
