Contract
Exhibit 10.4
THIS AMENDED AND RESTATED
AGREEMENT, made and entered into initially as of the 31st day of
December, 2003 (the “2003 Agreement”), and amended and restated this 29th day of
December 2008, but effective as of January 1, 2007, by and between GUARANTY BANK & TRUST
COMPANY, a West Virginia state-chartered banking institution (hereinafter
the “Employer”), and XXXXXXXX X.
XXXXXXXXXX (hereinafter the “Employee”).
W I T N E S S E T H
A. Employer
is engaged in the banking business in Huntington, West Virginia;
B. Employer
and Employee entered into the 2003 Agreement to evidence the terms and
conditions upon which Employee would be employed by Employer; and
C. Both
parties desire to amend and restate the terms and conditions of the employment
of Employee by Employer; and
D. The
2003 Agreement has been amended and restated as of January 1, 2007 to include
requirements under Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”).
NOW, THEREFORE,
WITNESSETH, that for and in consideration of the premises, and the
mutual covenants and promises contained herein, the parties agree as
follows:
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1. Employment. Employer
hereby employs Employee and Employee accepts such employment upon the terms and
conditions hereinafter set forth.
2. Term. Subject to the
provisions of termination as hereinafter provided, the term of this Agreement
shall begin on January 1, 2004 and terminate on December 31, 2008, provided,
however, that this Agreement shall automatically be renewed for successive one
(1) year terms thereafter and the termination date shall automatically extend
for one additional year unless either party gives the other written notice of
his or its intention not to renew this Agreement at least sixty (60) days prior
to the expiration of then current term.
3. Duties. Employee is
being employed by Employer in the capacity of Senior Vice President and shall
perform all duties incident to that office. In addition, Employee shall perform
such other duties as may, from time to time, be assigned to Employee by the
Board of Directors of Employer.
Employee
agrees that he will at all times faithfully, industriously and, to the best of
his ability, experience and talents, perform all duties that may be required of
and from him pursuant to the terms hereof to the reasonable satisfaction of
Employer.
4. Employee
Compensation. Employer shall pay Employee the following
compensation:
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A. Salary. Employer
shall pay to Employee compensation during the first year of the term of this
Agreement at an annual rate of Seventy Three Thousand Dollars ($73,000.00). For
each additional successive one (1) year term, the compensation to be paid
by Employer to Employee shall be renegotiated for such term, but in no event
shall such compensation be less than compensation paid to Employee during the
prior year unless agreed to by the Employee.
B. Performance Bonus.
Employee shall be entitled to participate in any management performance program
adopted by the Bank for the employees of the Bank.
C. Employee Benefits.
Employer shall provide, and Employee shall be entitled to receive, the employee
benefits provided by Employer to all employees in accordance with the personnel
policy to be adopted by the Board of Directors of Employer.
D. Stock Incentive
Program. Employee shall be entitled to participate in the Guaranty Bank
and Trust Company, 1999 Stock Incentive Plan, and any successor
plan.
E. Change in Control.
Following a Change in Control, as defined herein, Employee shall receive a
continuation of salary and benefits (as described in Paragraphs 4(A) and 4(C)
and in effect at the time of Change of Control) for a period of time equal to
the greater of the number of years remaining on the Term of this contract or
three (3) years. For purposes of this paragraph, “Change in Control” shall mean
a change in the ownership of the Employer or its holding company, Guaranty
Financial Services, Inc. (“GFS”), a change in the effective control of the
Employer or GFS, or a change in the ownership of a substantial portion of the
assets of the Employer or GFS, in each case as provided under Section 409A of
the Code and the regulations thereunder.
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If
the Employee is deemed to be a “Specified Employee”, as defined herein, then
payment of his benefits under this Section E that is payable because Employee’s
employment terminates as set forth in the preceding provisions, shall be delayed
until six (6) months and one (1) day after the date the benefit under such
provisions is payable, unless the Employee dies between such date and the
payment date, at which time all such benefits shall then commence. “Specified
Employee” shall mean a key employee (as defined in Section 416(i) of the Code
without regard to paragraph (5) thereof) of a corporation, any stock in which is
publicly traded on an established securities market or otherwise, and as is
further defined in Proposed Regulations 1.409A-1(i)(1) or any other regulation
finally adopted with respect to Section 416(i) of the Code.
F. Expenses. Employee
shall be reimbursed for reasonable expenses incurred by Employee for promoting
the Employer’s business, including expenses for entertainment, travel, and
similar items in accordance with Employer=s Expense Reimbursement Policy and
upon Employee’s periodic presentation of an itemized account of such
expenditures.
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G. Country Club Dues.
Employee shall continue as a member of Xxxxx Golf and Country Club. Employer
shall pay for the monthly capital assessments, dues and any taxes
thereon.
H. Other Employee
Benefits. All other benefits of employment available generally to other
employees of Employer shall be made available to Employee.
5. Termination of
Employment. Employee’s employment may be terminated in the following
manner:
A. Termination for
Cause. Employee’s employment may be terminated for Cause by the
Employer. For purpose of this Agreement for “Cause” means:
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1)
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A
material breach of this Agreement by Employee, including the failure of
Employee to comply with the directions of the Board of Directors of
Employer or the policies, standards and regulations established from time
to time by the Board, provided any such violation has continued uncured
for a period of more than 10 days after Employer has given written notice
thereof to Employee.
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2)
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Employee
is charged with commission of a felony or misdemeanor involving moral
turpitude.
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3)
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Embezzlement
by Employee or other misappropriation of Employer’s assets, Employee’s
personal dishonesty or Employee’s breach of fiduciary duty involving
personal profit.
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4)
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Employee’s
intentional, willful gross misconduct or gross neglect of duties which has
resulted or could reasonably be expected to result in material economic
damage to Employer.
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5)
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The
conduct of unethical business practices in connection with Employer’s
business.
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If
Employee’s employment is terminated pursuant to this paragraph 5A, Employer
shall pay to Employee the compensation payable to Employee for the month in
which such termination occurs, prorated to the day of termination, including
payment of accrued vacation, holiday and other benefits described herein. After
such payment is made, Employer shall have no further financial obligation to
Employee pursuant to this Agreement. Regardless of the effective date of
termination of Employee’s employment hereunder, Employer may require Employee to
quit Employer’s premises at any time following delivery of written notice of
termination hereunder.
B. Death During
Employment. If Employee shall die during the term of his employment,
Employer shall pay to the Employee’s personal representative the compensation
which would otherwise be payable to Employee up to the end of the month in which
his death occurs. Said compensation shall include any and all accrued vacation,
holiday, and any other benefits accrued pursuant to this Agreement. After such
payment, the Employer shall have no further financial obligation to Employee or
to his estate pursuant to this Agreement.
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C. Disability During
Employment. In the event of Employee’s Disability as defined herein, any
illness or accident renders Employee totally disabled, Employer’s obligations
under this Agreement shall terminate once the Employee is eligible for
disability benefits under the Employer’s Disability Policy, but in no event
longer than one hundred twenty (120) days following such total disability.
“Disability” shall mean Employee is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a
continuous period of not less than twelve (12 months).
D. Voluntary Resignation by
Employee. Employee may resign voluntarily at any time upon giving
Employer at least thirty (30) days written notice of his resignation. Employee
shall be paid all benefits accrued through the date of
resignation.
E. Return of Property.
Upon termination of employment for any reason whatsoever, Employee shall deliver
to Employer, at Employer’s place of business, any automobile or other equipment
and supplies furnished to Employee by Employer.
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6. Covenant Not to
Compete.
A. As
additional consideration for the execution and delivery of this Agreement by
Employer, Employee agrees that for a period of three (3) years following
termination of Employee=s employment for any reason (including his
resignation as set forth in paragraph 5D) other than (i) the failure of
Employer to renew the term of this Agreement as permitted in paragraph 1 above
or (ii) the breach by Employer of this Agreement, Employee shall not become an
employee, officer, director, consultant to, representative of, an independent
contractor with, agent of, or a stockholder owning ten percent (10%) or more of
the issued and outstanding stock of any banking institution, bank holding
company, or other entity that competes directly or indirectly with Employer
within fifty (50) miles of the city limits of Huntington, West Virginia as such
city limits are so constituted at the time of termination of Employer=s
employment. Ownership of stock in any entity whose stock is traded on a
nationally recognized stock exchange shall not violate this
provision.
B. Employee
agrees that monetary damages for the breach of this covenant would be
inadequate, and that, in the event of any threatened or actual breach, hereof,
Employer shall be entitled to specific enforcement of this covenant through
injunction or other relief in a court of appropriate
jurisdiction.
C. In
the event any part of this covenant is found to be unenforceable for any reason,
the remainder of such covenant shall nonetheless remain in full force and
effect.
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7. Waiver of
Breach.
A. General Waiver.
Employee’s breach of any provision of this Agreement shall not be construed as a
waiver of any subsequent breach by Employee. Employee’s waiver of Employer’s
breach of any provision of this Agreement shall not be construed as a waiver of
any subsequent breach by Employer.
B. Damages for Breach of
Contract. If this Agreement is breached by either party hereto which
results in damages to the other party, the other party may recover from the
breaching party such damages as may be sustained.
8. Assignment. This
Agreement may not be assigned by Employee.
9. Notices. Any notice
required or desired to be given under this Agreement shall be deemed given if in
writing and sent by certified mail, return receipt requested, to Employee’s
residence or to Employer’s principal office, as the case may be.
10. Modification or Termination
of Agreement. This Agreement may not be modified or terminated orally. No
modification or termination or attempted waiver shall be valid unless in
writing, signed by the party against whom the same is sought to be enforced. The
agreements, warranties and representations contained in this Agreement shall
survive and remain in full force and effect following the termination of this
Agreement.
11. Successors and
Assigns. Subject to the provisions of Paragraph 8 above, this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective representatives, heirs at law, assigns and
successors in interest.
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12. Headings. The
headings in this Agreement are used solely for convenience and not to be used in
construing or interpreting this Agreement.
13. Severability. If one
or more of the provisions herein is found to be unenforceable, illegal or
contrary to public policy, this Agreement will remain in full force and effect,
except for the unenforceable provision.
14. Entire Agreement.
This Agreement represents the entire agreement between the parties.
15. Governing Laws. The
laws of the State of West Virginia govern this Agreement.
16. Section
409A. Notwithstanding any other provision of this Agreement, it is intended that
any payment or benefit which is provided pursuant to, or in connection with,
this Agreement shall be provided and paid in a manner, and at such time and in
such form, as complies with the applicable requirements of Section 409A of the
Code to avoid the unfavorable tax consequences provided therein for
non-compliance. Any provision in this Agreement that is determined to violate
the requirements of Section 409A shall be void and without effect. To the extent
permitted under Section 409A of the Code, the parties shall reform the
provision, provided such reformation shall not subject the Employee to
additional tax or interest. In addition, any provision that is required to
appear in this Agreement that is not expressly set forth shall be deemed to be
set forth herein, and this Agreement shall be administered in all respects as if
such provision were expressly set forth. References in this Agreement to Section
409A of the Code include rules, regulations, and guidance of general application
issued by the Department of the Treasury under Section 409A of the
Code.
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This
instrument is signed and sealed as of the date first above written.
| GUARANTY BANK & TRUST COMPANY, | ||
| a West Virginia state-chartered banking institution | ||
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By
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/s/ Xxxx X.
Xxxxxxx
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Printed
Name:
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Xxxx X.
Xxxxxxx
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Title:
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President and Chief
Executive Officer
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| /s/ Xxxxxxxx X. Xxxxxxxxxx | ||
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XXXXXXXX
X.
XXXXXXXXXX
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