Exhibit 10.1
ENTERPRISE FINANCIAL SERVICES
CORP.
EXECUTIVE EMPLOYMENT AGREEMENT
THIS
EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement"), is made by and
between PETER F. BENOIST (the "Executive") and ENTERPRISE
FINANCIAL SERVICES CORP , a Delaware corporation (the
"Company"), on this 24th day of September, 2008 (the "Execution
Date") to be effective as of May 1, 2008 (the "Effective
Date").
WITNESSETH:
WHEREAS, Executive was
elected by the Board of Directors of the Company to serve as the
Company's President and Chief Executive Officer, and the Company
desires to continue to employ Executive on the terms, covenants and
conditions hereinafter set forth in this Agreement.
NOW, THEREFORE, for the
reasons set forth above, and in consideration of the mutual
promises and agreements set forth in this Agreement, the Company
and Executive agree as follows:
1. Employment
. Subject to the terms and
conditions set forth in this Agreement, the Company hereby employs
Executive for the Employment Term as hereafter defined.
1.1 Title
and Duties . During the Employment Term,
Executive shall serve as the President and Chief Executive Officer
of the Company and shall have such duties and responsibilities as
are customarily assigned to individuals serving in such positions
and such other duties as the Board of Directors (the
“Board”) of the Company may from time to time specify
to the extent that such other duties are consistent with such
corporate office and position. Without limiting the foregoing, if
elected or appointed, Executive shall hold such offices and serve
on the Board of Directors of Affiliates of the Company as
determined by the Company, without any additional compensation for
additional services rendered in such capacities. Executive shall
comply with all policies and procedures of the Company and its
Affiliates generally applicable to executive employees.
1.2
Location . The duties and
responsibilities Executive is to perform under this Agreement shall
be applicable to any location at which the Company or its
Affiliates may be conducting business during the Employment Term.
Executive may be required from time to time to perform his duties
on an occasional basis at such other places as the CEO or the Board
shall designate or as the interests or business opportunities of
the Company and its Affiliates may require; provided, however, that
without Executive’s consent, the Executive shall not be
required to relocate his primary residence from the St. Louis,
Missouri metropolitan area.
1.3
Acceptance
and Devotion to Duties . Executive hereby accepts such
employment and agrees that during the Employment Term he will
devote all of his skill, knowledge, commercial efforts and working
time to the conscientious and faithful performance of his duties
and responsibilities to the Company and its Affiliates; provided,
however, Executive shall be permitted to engage in civic and
charitable activities and personal financial matters to the extent
that such activities do not conflict with or interfere with
Executive’s performance of his duties under this Agreement.
Executive will use his best good faith efforts to promote the
success of the business of the Company and its Affiliates, and will
cooperate fully with the Board of the Company and its Affiliates in
the advancement of their best interests. If elected, Executive will
agree to serve as a member of the Board of the Company and its
Affiliates, without additional compensation.
2. Term of Employment
. Except as otherwise provided
herein, the initial term of Executive's employment shall be for a
period commencing on the Effective Date and ending on December 31,
2013 (the “Initial Term”). The term of Executive's
employment shall be automatically extended for successive one (1)
year periods beginning on January 1 and ending on December 31 (each
a “Renewal Term”) upon the same provisions for Base
Salary and Targeted Bonus (as provided below) unless either the
Company or Executive provides written notice (“Non-Renewal
Notice”) to the other party at least ninety (90) days prior
to the expiration of the Initial Term or then current Renewal Term,
as applicable, that the term of this Agreement will not be renewed.
The term during which Executive is an employee of the Company,
including any Renewal Term, is referred to as the “Employment
Term.” Notwithstanding the expiration of the Employment Term
or such later termination of Executive's employment with the
Company, the obligations of Executive under Sections 7, 8 and 9 of
this Agreement shall survive the termination of Executive’s
employment with the Company and its Affiliates.
3.
Compensation of Executive .
3.1 Base
Salary . During the Employment Term,
the Company shall pay to the Executive as compensation for the
services to be performed by the Executive a base salary at the rate
of $425,000.00 per year (the "Base Salary") commencing and
retroactive to the Effective Date. The Base Salary shall be payable
in installments in accordance with the Company's normal payroll
practice and shall be subject to such withholdings and other
ordinary employee withholdings as may be required by law. The Base
Salary may be adjusted from time to time in the sole discretion of
the Board, but shall not be reduced without the consent of
Executive.
3.2 Targeted
Bonus . In addition to the
compensation set forth elsewhere in this Section 3, for each year
during the Employment Term, the Executive shall qualify for a
targeted annualized bonus (“Targeted Bonus”) based upon
meeting established targeted goals with respect to the Company
and/or its Affiliates.
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(a) No later than
the Company’s January Board meeting in 2009 and in each
subsequent year during the Employment Term, the Board or the
Compensation Committee of the Board ("Committee") to which such
authority has been delegated shall establish (in consultation with
the Executive) certain targeted financial and operating goals
(“Bonus Objectives”) for that calendar year, which may
include specific goals such as consolidated return on equity, asset
quality and performance of the Company's wealth management services
and/or specific goals for Affiliates of the Company. Performance
Levels will be set at Threshold, Target and Exceptional for each
Bonus Objective, and the Board or the Committee shall designate (in
consultation with the Executive) what portion of the total Targeted
Bonus shall be associated to the achievement of each Bonus
Objective and the requisite Performance Level for each Bonus
Objective. The established financial Bonus Objectives shall be
consistent with the financial plan for the Company and its
Affiliates as adopted by the Board and/or the respective board or
management of the Company's Affiliates.
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(b) Within 75 days after the end of
each calendar year (beginning with 75 days following calendar year
2008), the Board or the Committee shall make a good faith
determination as to the extent to which Performance Levels for each
Bonus Objective have been met for the preceding calendar
year.
(c) For each year
during the Employment Term, Executive shall be entitled to a
Targeted Bonus of 36% of the then applicable Base Salary for the
year for overall performance at Threshold, 53% of the then
applicable Base Salary for the year for overall performance at
Target and no less than 70% of the then applicable Base Salary for
the year for overall performance at Exceptional as determined by
the Board or the Committee. The amount of Targeted Bonus applicable
for any year shall be interpolated on a straight line basis for
performance between Threshold and Target, and for performance above
Target the amount of Targeted Bonus shall be interpolated on a
straight line basis between Target and Exceptional. No Targeted
Bonus shall be due for performance below Threshold. Executive shall
also be eligible to receive such other bonuses or incentive
payments as may be approved by the Board (or the Committee to which
the Board has delegated such authority).
(d) For the 2008
fiscal year of the Company, Executive shall receive a Targeted
Bonus of $223,333 upon achieving a Performance Level for 2008 at
Target, $157,000 upon achieving a Performance Level for 2008 at
Threshold and $292,500 upon achieving a Performance Level for 2008
at Exceptional. The amount of Targeted Bonus applicable for the
2008 fiscal year for performance shall be interpolated on a
straight line basis for performance between Threshold and Target,
and for performance above Target the amount of Targeted Bonus shall
be interpolated on a straight line basis between Target and
Exceptional.
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3.3
Benefits . Executive shall be entitled to
participate, during the Employment Term, in all regular employee
benefit and deferred compensation plans established by each of
Enterprise Bank (to the extent such participation is not restricted
by the Internal Revenue Code of 1986 (the “Code”)) and
the Company, including, without limitation, any savings and profit
sharing plan, incentive stock plan, dental and medical plans, life
insurance and disability insurance, such participation to be as
provided in said employee benefit plans in accordance with the
terms and conditions thereof as in effect from time to time and
subject to any applicable waiting period. Executive shall also be
entitled to four weeks of paid vacation during each year of the
Employment Term, provided that any vacation not used in any year
shall be forfeited and not carried over to any subsequent year. In
addition to the foregoing benefits, the Company agrees (i) to
provide during the Employment Term aggregate term insurance on
Executive’s life equal to $1,000,000 payable to a beneficiary
designated by Executive, provided that Executive qualifies for such
coverage at normal published premium rates, and (ii) to provide (or
reimburse Executive with respect to) supplemental disability income
insurance such that the total combined disability income coverage
available to employee from the Company and under policies
maintained by Executive on which the Company reimburses Executive
for the premiums is equal to $25,000 per month until
Executive’s 65 th birthday. Executive agrees that
the cost of the foregoing supplemental insurance benefits shall
constitute taxable benefits and be subject to such withholding
taxes as may be required by law.
3.4
Reimbursement of Expenses . The Company will provide for
the payment or reimbursement of all reasonable and necessary
expenses incurred by the Executive in connection with the
performance of his duties under this Agreement in accordance with
the Company's expense reimbursement policy, as such may change from
time to time. Without limiting the foregoing, the Company further
agrees during the Employment Term (i) to reimburse Executive for
monthly automobile expense by means of a $500 per month automobile
allowance.
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3.5 Annual
Review. The Committee shall, no less
than annually, review the amount of Base Salary, Targeted Bonus,
restricted stock units, and stock options awarded to Executive, and
shall make recommendations to the Board for any changes in those
regards which it deems appropriate.
4. Long
Term Incentives .
4.1 Grants
of RSU’s . Each year during the Initial
Term, at such time as grants are made under the Company’s
2005 Long Term Incentive Compensation Plan ("Plan") and any
subsequently adopted long-term incentive compensation plan,
Executive shall be entitled to receive a grant of
dollar-denominated restricted stock units ("RSUs"), in such amount
as determined annually by the Committee, which confer to Executive
a contingent right to receive an award of a number of shares of
restricted common stock in the Company ("Restricted Stock") at the
expiration of a three (3) year performance period established by
the Committee. The number of shares of Restricted Stock awarded
under each such grant will be based on and subject to the Company
meeting applicable performance standards as provided under the
agreements or resolutions governing the RSUs. The shares of
Restricted Stock which may be awarded to Executive as a result of
granted RSUs will initially be unvested and will vest on an annual
basis over a period five (5) years subject to Executive's
continuing and uninterrupted employment with the Company in
accordance with the Plan. In all respects, the Plan and the
agreements providing for the grant of RSUs shall control the
amount, manner, vesting and all other matters regarding the RSUs.
For the year 2008, Executive shall receive a grant of
dollar-denominated RSU's of $336,000 under the Company's Plan,
inclusive of the grant previously made to Executive prior to the
Execution Date for the year 2008.
4.2
Special Grant of SSAR's . Upon the Execution Date, the
Company shall grant Executive 50,000 stock settled appreciation
rights ("SSAR's), each of which will give the Executive the right
to common stock in the Company equal in value to the appreciation
in market price of the Company's common stock from the date of the
grant of the SSAR's to the date of the exercise in accordance with
the grant. The provisions of such SSAR's, including the provisions
for vesting over three years, shall be in accordance with the
Company's 2002 Stock Incentive Plan (as amended) and shall have
substantially the same terms as the SSAR's previously granted to
employees of the Company. Such grant of SSAR's shall be documented
in a Grant Agreement, which has been executed by the Company and
the Executive simultaneously with the execution of this
Agreement.
4.3
Discretionary Additional Grants . Executive may receive
additional grants of incentive compensation in the form of
contingent rights to equity in the Company as determined by the
Board or the Committee under their discretion, under the terms of
the Company's 2002 Stock Incentive Plan as adopted and/or amended
by the Company from time to time.
4.4 Vesting
Upon Change in Control . In the event of a Change in
Control, all unvested stock options, Restricted Stock, RSU's and
SSAR’s (if any) shall immediately become fully vested in
accordance with the respective terms of such awards;
5.
Termination of Employment .
5.1
Termination for Cause . "Termination for Cause", as
hereinafter defined, may be effected by the Company at any time
during the term of this Agreement by written notification to
Executive, specifying in detail the basis for the Termination for
Cause.
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(a) Upon Termination for Cause,
Executive shall immediately be paid (i) all accrued salary, (ii)
bonus compensation to the extent earned and payable, (iii) vested
deferred compensation, if any, (other than pension plan or profit
sharing plan benefits which will be paid in accordance with the
terms of the applicable plan), (iv) any accrued benefits under any
plans of the Company in which the Executive is a participant to the
full extent of the Executive’s rights pursuant to the
provisions of such plans, (v) unused accrued vacation pay for the
year in which termination occurs, and (vi) any appropriate business
expenses incurred by Executive reimbursable by the Company in
accordance with this Agreement, all to the date of termination.
(The items described in subparagraphs (i) through (vi) in this
Section 5.1(a) are hereafter collectively referred to as "Accrued
Compensation".) Upon a Termination for Cause, Executive shall not
be paid any other compensation or reimbursement of any kind,
including without limitation, Severance Compensation.
(b) "Termination
for Cause" shall mean termination by the Company of Executive's
employment by the Company by reason of (i) an order of any federal
or state regulatory authority having jurisdiction over the Company
or any of its Affiliates which has the effect in the opinion of the
Board to limit the scope of Executive's duties or otherwise
inhibits Executive from performing his duties pursuant to this
Agreement, (ii) the willful failure of Executive substantially to
perform his duties hereunder (other than any such failure due to
Executive’s physical or mental illness); (c) a breach by
Executive of any material provision of this Agreement or of any
other written agreement with the Company or any of its Affiliates;
(ii) Executive’s commission of a crime that constitutes a
felony or other crime of moral turpitude or criminal fraud; or (iv)
chemical or alcohol dependency which materially and adversely
affects Executive's performance of his duties under this Agreement;
(v) any act of disloyalty or breach of responsibilities to the
Company by the Executive which is intended by the Executive to
cause material harm to the Company; (vi) misappropriation (or
attempted misappropriation) of any of the Company’s funds or
property. If subsequent to Executive’s termination of
employment hereunder for other than Cause it is determined in good
faith by the Company that Executive’s employment could have
been terminated for Cause hereunder, Executive’s employment
shall be deemed to have been terminated for Cause retroactively to
the date the events giving rise to Cause occurred.
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5.2
Termination Other Than for Cause . Notwithstanding any other
provisions of this Agreement, the Company may effect a "Termination
Other Than For Cause", as hereinafter defined, at any time upon
giving written notice to Executive of such termination.
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(a) Upon any
Termination Other Than for Cause, all payments and benefits set
forth in this Section 5.2 and Section 6.2 (other than pension plan
or profit sharing plan benefits which will be paid in accordance
with the applicable plan), shall be subject to and conditioned upon
Executive's compliance with the terms, provisions and conditions
contained in this Agreement and shall be subject to and conditioned
upon Executive’s execution of a release and waiver of all
claims with respect to Executive’s employment against the
Company its Affiliates and their respective officers and directors
in a form reasonably satisfactory to the Company, other than rights
under this Section 5.2 and Section 6.2
(b) Executive
shall within 30 days after such Termination Other Than For Cause be
paid all Accrued Compensation, together with Severance Compensation
as provided in Section 6.2.
(c)
“Termination Other Than for Cause” shall
mean
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(i) any
termination by the Company of Executive’s employment with the
Company other than a Termination for Cause (as defined in Section
5.1), a Termination by Reason of Disability (as defined in Section
5.3), a termination on account of death (as described in Section
5.4), a Voluntary Termination (as defined in Section 5.5) or a
Termination Upon a Change of Control (as defined in Section 5.6),
or
(ii) a termination
by Executive of Executive’s employment with the Company by
reason of a Constructive Termination. As used herein, "Constructive
Termination" means the termination of Executive's employment by the
Executive by reason of (A) the Company’s material breach of
this Agreement. which remains uncured for a period of thirty (30)
days following Executive's notice of such breach given to the
Company, (B) the assignment of Executive without his consent to a
position, responsibilities or duties of a materially lesser status
or degree of responsibility than his position, responsibilities or
duties as of the Effective Date, following notice by Executive of
his refusal to consent to such position, responsibilities or duties
(which must be given within thirty (30) days of such assignment)
and the Company's refusal to modify such position or responsibility
so that it is no longer of lesser status or degree of
responsibility than his position, responsibilities or duties as of
the Effective Date (C) the requirement by the Company that
Executive's primary residence be based anywhere other than the St.
Louis, Missouri metropolitan area, without Executive’s
consent,. or (D) the failure of Executive to be reelected to the
Board by its stockholders or the failure of the Board to
re-nominate him for reelection to the Board without
Executive’s consent.
(iii) any
termination of Executive's employment pursuant to this Agreement
effectuated by the Company giving a Non-Renewal Notice
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