EXHIBIT 10.14
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made this 1st day of March, 2003 ("Effective Date"), by and
between WEST BANCORPORATION, INC., (the "Company") and XXXXXX X. XXXXXXXXX (the
"Employee").
INTRODUCTION
The Board of Directors of the Company (the "Board") has determined that it is in
the best interests of the Company to retain the Employee's services and to
reinforce and encourage the continued attention and dedication of the Employee
to his assigned duties.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the Company and the Employee hereby agree as follows:
1. Employment. Upon the terms and subject to the conditions contained in
this Agreement, the Employee agrees to provide full-time services for
the Company during the term of this Agreement. The Employee agrees to
devote his best efforts to the business of the Company, and shall
perform his duties in a diligent, trustworthy, and business-like
manner, all for the purpose of advancing the business of the Company.
2. Duties. The Employee shall hold the title of CHAIRMAN, PRESIDENT & CEO
of WEST BANCORPORATION, INC., AND VICE-CHAIRMAN AND CHIEF INVESTMENT
OFFICER OF WEST BANK, and shall report directly to THE BOARD. The
Employee shall render such administrative and management services for
Company as are currently rendered and as are currently performed by
persons situated in a similar executive capacity. The Employee shall
also promote, by entertainment or otherwise, as and to the extent
permitted by law, the business of the Company. The Employee's duties
may, from time to time, be changed or modified at the discretion of the
Board.
3. Employment Term. Subject to the terms and conditions hereof, the
Company agrees to employ, and the Employee hereby accepts employment,
for the 3 years commencing March 1, 2003, subject to the terms of this
Agreement. Additionally, subject to the terms of this Agreement, and in
the sole discretion of the Board, this Agreement may be renewed
annually with written notice, on or before the anniversary date of the
Effective Date, for another 3-year period. In the event of nonrenewal,
this Agreement will expire at the end of any current three-year term
unless renewal is granted before the Agreement expires.
4. Compensation and Benefits.
(a) Base Salary. As of the Effective Date of this Agreement, the
Company agrees to pay the Employee during the term of this
Agreement an initial salary of: (i) $166,666.60 for the period
from March 1, 2003 through December 31, 2003; and (ii)
thereafter $200,000 per annum, payable in accordance with
Company's normal payroll practices with such payroll
deductions and withholdings as are required by law (the "Base
Salary"). Employee's Base Salary will be reviewed by the
Compensation Committee of the Board at least annually, and may
be increased (but not reduced) thereafter on the anniversary
of the Effective Date.
(b) Annual Incentive Payment. In addition to other compensation to
be paid under this Section 4, each year during the term of
this Agreement the Employee shall be eligible to receive an
annual cash incentive payment (the "Annual Incentive
Payment"). The Annual Incentive Payment for the period from
March 1, 2003 through December 31, 2003 shall be $133,333.40.
In each successive year of the Employee's employment under
this Agreement the Employee shall be entitled to an Annual
Incentive Payment agreed to between the Employee and the
Board. The amount actually awarded and paid to the Employee
each year will be determined by the Compensation Committee of
the Board in its sole discretion, in conjunction with the
terms of any incentive plan document.
(c) Equity Appreciation Plans. In addition to other compensation
to be paid under this Section 4, the Company will grant stock
options, stock appreciation rights, restricted stock or other
forms of equity participation rights to Employee as a
Participant if a plan is adopted by the Company.
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(d) Vacation. The Employee shall be entitled to 25 days of paid
vacation, plus all scheduled bank holidays, during each full
year of his employment hereunder in accordance with the
general terms of the vacation policy adopted by the Company.
In addition, upon any Termination under Section 5, except for
Termination for Cause, the Employee will be paid any remaining
accrued vacation that has not been taken through the date of
Termination.
(e) Reimbursement of Expenses. The Company shall reimburse the
Employee in accordance with Company's expense reimbursement
policies for all reasonable, ordinary and necessary business
expenses incurred by the Employee in the course of his duties
conducted on behalf of the Company. In addition, the Company
shall pay the Employee's annual dues at Des Moines Golf and
Country Club and the Des Moines Club/Embassy Club and expenses
related to the Employee's use of such clubs for matters
related to the business of the Company.
(f) Employee Benefits. The Employee shall be entitled to
participate in any employee benefit plans, including profit
sharing plans, now existing or established hereafter generally
available to employees of the Company or senior officers of
the Company, and to all normal perquisites provided to senior
officers of the Company, provided Employee is otherwise
qualified to participate in such plans or programs. As part of
its normal course of business, the Company may amend and/or
terminate employee benefits.
(g) Benefits Not in Lieu of Compensation. No benefit or perquisite
provided to the Employee shall be deemed to be in lieu of Base
Salary, Annual Incentive Payment or other compensation,
provided that the reporting of any benefits shall be
consistent with IRS regulations.
5. At-will Employment and Termination. Employment with West
Bancorporation, Inc. will be at-will and may be terminated at any time
by either party for the reasons in this Section 5.
(a) For purposes of this Agreement, "Good Reason" shall mean:
(i) Without the Employee's express written consent, the
assignment to the Employee of any duties or
responsibilities inconsistent with the Employee's
positions, or a change in the Employee's reporting
responsibilities, titles or offices as described
under Section 2, or any removal of the Employee from
or any failure to re-elect the Employee to any of
such positions, except in connection with the
termination of the Employee's employment for Cause,
Disability or retirement or as a result of the
Employee's death;
(ii) A reduction by the Company in the Employee's Base
Salary;
(iii) Any failure of the Company to obtain the assumption
of, or the agreement to perform, this Agreement by
any successor as contemplated in Section 15(a)
hereof; or
(iv) The Company requiring the Employee to be based
anywhere other than the Polk County, Iowa, area
except for required travel on Company business to an
extent substantially consistent with the Employee's
present business travel obligations and as described
under Section 2, or, in the event the Employee
consents to any relocation, the failure by the
Company to pay (or reimburse the Employee) for all
reasonable moving and relocation expenses incurred by
the Employee relating to a change of the Employee's
principal residence in connection with such
relocation.
(b) Cause. Notwithstanding any provision of this Agreement to the
contrary, the Company shall not pay any Compensation and
Benefits under this Agreement if the Company determines that
the Employee committed one of the following acts while in the
employ of the Company:
(i) Gross negligence or gross neglect of duties;
(ii) Commission of a felony or of a gross misdemeanor
involving moral turpitude; or
(iii) Fraud, disloyalty, dishonesty or willful violation of
any law or significant Company policy committed in
connection with Employee's employment and resulting
in an adverse effect on the Company.
(c) Death. This Agreement shall be terminated automatically upon
the death of the Employee. Within ten (10) business days of
termination, the company shall pay to the Employee's
beneficiary a sum equal to one month of Base Salary at the
then-effective rate paid to the Employee, plus the Annual
Incentive Payment for the current fiscal year pro-rated for
the months worked.
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(i) The Employee shall designate a beneficiary by filing
a written designation with the Company. The Employee
may revoke or modify the designation at any time by
filing a new designation. However, designations will
only be effective if signed by the Employee and
received by the Company during the Employee's
lifetime. The Employee's beneficiary designation
shall be deemed automatically revoked if the
beneficiary predeceases the Employee, or if the
Employee names a spouse as beneficiary and the
marriage is subsequently dissolved. If the Employee
dies without a valid beneficiary designation, all
payments shall be made to the Employee's estate.
(ii) If a benefit is payable to a minor, to a person
declared incompetent, or to a person incapable of
handling the disposition of his or her property, the
Company may pay such benefit to the guardian, legal
representative or person having the care or custody
of such minor, incapacitated person or incapable
person. The Company may require proof of
incompetence, minority or guardianship as it may deem
appropriate prior to distribution of the benefit.
Such distribution shall completely discharge the
Company from all liability with respect to such
benefit.
(d) Disability. The Company may terminate the Employee's
employment for Disability as defined under the Company's
long-term disability policy. If the company does not have a
long-term disability policy, disability shall be defined as
the Employee's inability through physical or mental illness or
other cause to perform the essential functions of the
Employee's position, with or without reasonable accommodation,
in the opinion of the Company, for the continuous period of
six (6) months. Within ten (10) business days of termination,
the Company shall pay to the Employee a sum equal to one month
of Base Salary at the then-effective rate paid to the
Employee, plus the amount of Annual Incentive for the current
fiscal year pro-rated for the months worked.
(e) Voluntary Resignation or Termination for Cause. If the
Employee shall voluntarily terminate his employment for other
than Good Reason, as defined in Section 5(a), or if the
Company shall discharge the Employee for Cause, as defined in
Section 5(b), this Agreement shall terminate immediately and
the Company shall have no further obligation to make any
payment under this Agreement which has not already become
payable, but has not yet been paid; provided, however, that
with respect to restricted stock, incentive plans, deferred
compensation arrangements, or other plans or programs in which
the Employee is participating at the time of termination of
his employment, the Employee's rights and benefits under each
such plan shall be determined in accordance with the terms,
conditions, and limitations of the plan and any separate
agreement executed by the Employee which may then be in
effect. Termination for Cause shall only occur after the
Board, in its sole and absolute discretion, has made a full
and thorough determination of "Cause."
(f) Involuntary Termination Without Cause or Resignation for Good
Reason. If during the term of the Agreement, the Employee's
employment is involuntarily terminated by the Company without
Cause or the Employee voluntarily terminates the Employee's
employment for Good Reason, then the following shall apply:
(i) Base Salary. Within ten (10) business days of
termination, the Company shall pay the Employee in a
lump sum an amount equal to the aggregate amount of
Base Salary the Employee would be entitled to receive
under this Agreement for the balance of the
Employment Term, but no less than one year.
(ii) Annual Incentive Payment. In addition to Base Salary
and within ten (10) business days of termination, the
Company shall also pay to the Employee in a lump sum
an amount equal to the most recent Annual Incentive
Payment the Employee would be entitled to receive
under this Agreement for the balance of the
Employment Term, but not less than one year.
If Involuntary Termination occurs within 12 months following,
or 2 months prior to, a Change in Control, then the benefit
under Section 6 shall apply, in lieu of payments provided for
in paragraph 5(f)(i) and (ii).
6. Termination After Change in Control Benefit. If within 12 months after,
or 2 months prior to, a Change in Control of the Company as defined in
Section 6(a), the Company terminates the Employee's employment for
reasons other than those under Section 5(b) herein, or if the Employee
shall terminate his employment for Good Reason, then the Company shall
pay to the Employee a benefit as defined in Section 6(b).
(a) Change in Control. The term Change in Control shall have the
following meaning:
(i) Any person or entity or group of affiliated persons
or entities (other than the Company) becomes a
beneficial owner, directly or indirectly, of 30% or
more of the Company's voting securities or all or
substantially all of the assets of the Company;
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(ii) The Company enters into a definitive agreement which
contemplates the merger, consolidation or combination
of the Company with an unaffiliated entity in which
either or both of the following is to occur: (i) the
Board of Directors of the Company, as applicable,
immediately prior to such merger, consolidation or
combination will constitute less than a majority of
the board of directors of the surviving, new or
combined entity; or (ii) less than 50% of the
outstanding voting securities of the surviving, new
or combined entity will be beneficially owned by the
stock holders of the Company immediately prior to
such merger, consolidation or combination; provided,
however, that if any definitive agreement to merge,
consolidate or combine is terminated without
consummation of the transaction, then no Change in
Control shall be deemed to have occurred pursuant to
this paragraph;
(iii) The Company enters into a definitive agreement which
contemplates the transfer of all or substantially all
of the Company's assets, other than to a wholly-owned
Subsidiary of the Company; provided, however, that if
any definitive agreement to transfer assets is
terminated without consummation of the transfer, then
no Change in Control shall be deemed to have occurred
pursuant to this paragraph; or
(iv) A majority of the members of the Board of Directors
of the Company shall be persons who: (i) were not
members of such Board on the Effective Date ("current
members"); and (ii) were not nominated by a vote of
such Board which included the affirmative vote of a
majority of the current members on such Board at the
time of their nomination ("future designees") and
(iii) were not nominated by a vote of such Board
which included the affirmative vote of a majority of
the current members and future designees, taken as a
group, on such Board at the time of their nomination.
(b) Amount. Upon a termination of the Employee's employment under
the circumstances described in this Section 6, the Employee
will receive a Change in Control Benefit equal to three (3)
times the Employee's Current Annual Compensation as defined in
this Section 6(b)(i) as of the date of the Change in Control.
(i) Current Annual Compensation. The Employee's current
annual Base Salary paid by the Company which was
includible in the Employee's gross income as of the
time of Employee's termination plus the most recent
Annual Incentive Payment. This definition covers
amounts includible in compensation, i.e., the Base
Salary and Cash Annual Incentive prior to any cash or
deferred arrangements.
(ii) Equity Appreciation Plans. The Company shall pay to
the Employee any amounts due under Section 4(c)
according with the terms, conditions and limitations
of the plans and any separate agreements under
Section 4(c) without regard to "vesting" thereunder.
(c) Consideration of Benefit. As consideration for the benefit
paid in this Section 6, at the discretion of the successors as
described in Section 15(a), the Employee must work with the
new organization for a period of not less than six months.
However, if the Employee fails to remain employed for at least
six months with the new organization for reason other than
Good Reason, or if the Company terminates the Employee's
employment for Termination for Cause, then no benefits will be
provided to the Employee.
(d) Limited Benefit. Notwithstanding any of the provisions of this
Section 6 or other provisions in this Agreement to the
contrary, if any payments or benefits received or to be
received by the Employee (whether pursuant to the terms of
this Agreement or any other plan, arrangement or agreement
with the Company, any person whose actions result in a change
of Control or any person affiliated with the Company or such
person) constitute "parachute payments" within the meaning of
Section 280G(b)(2)(A) of the Code and the value thereof
exceeds 2.99 times the Employee's "base amount," as defined in
Section 280G(b)(3) of the Code, then in lieu thereof, the
Company shall pay to the Employee, as soon as practicable
following the termination of the Employee's employment by the
Company but in no event later than thirty (30) days
thereafter, a lump sum cash payment equal to 2.99 times his
"base amount" (the "Alternative Severance Payment") , reduced
as provided below. The value of the payments to be made under
Section 6(b) and the Employee's base amount shall be
determined in accordance with temporary or final regulations,
if any, promulgated under Section 280G of the Code and based
upon the advice of the tax counsel referred to below.
The Alternative Severance Payment shall be reduced by the
amount of any other payment or the value of any benefit
received or to be received by the Employee in connection with
a Change of Control of the Company or his termination of
employment unless (i) the Employee shall have effectively
waived his receipt or enjoyment of such payment or benefit
prior to the date of payment of the alternative Severance
Payment, (ii) in the opinion of tax counsel selected by the
Company's independent auditors, such other payment or benefit
does not constitute a "parachute payment" within the meaning
of Section 280G(b)(2) of the Code, or (iii) in the opinion of
such tax counsel, the Alternative Severance Payment plus all
other payments or benefits which constitute "parachute
payments" within the meaning of Section 280G(b)(2) of the Code
are reasonable compensation for services actually rendered
within the meaning of Section 280G(b)(4) of the Code or are
otherwise not subject to disallowance as a deduction by reason
of Section 280G of the Code. The value of any non-cash benefit
or any deferred payment or benefit shall be determined in
accordance with the principles of Section 280G(d)(3) and (4)
of the Code.
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(e) Section 162(m) Limitation. In the event that the payments due
to the Employee under this Section 6 exceed the "reasonable
compensation" limitations of Section 162(m) of the Code, that
portion thereof that would not be deductible by the Company in
the taxable year in which the payment is due shall be deferred
by the Company and paid to the Employee on the date that is
sixteen (16) months following the termination of the
Employee's employment by the Company, together with interest
thereon at the rate provided in Section 7872(f)(2) of the
Code.
7. Confidential Information. The Employee recognizes and acknowledges that
he will have access to certain information of the Company and that such
information is confidential and constitutes valuable, special and
unique property of the Company. The Employee shall not at any time,
either during or subsequent to the term of this Agreement, disclose to
others, use, copy or permit to be copied, except as directed by law or
in pursuance of the Employee's duties for or on behalf of the Company,
its successors, assigns or nominees, any Confidential Information of
the Company (regardless of whether developed by the Employee), without
the prior written consent of the Company.
The term "Confidential Information" with respect to any person means
any secret or confidential information or know-how and shall include,
but shall not be limited to, the plans, customers, costs, prices, uses,
and applications of products and services, results of investigations,
studies owned or used by such person, and all products, processes,
compositions, computer programs, and servicing, marketing or
operational methods and techniques at any time used, developed,
investigated, made or sold by such person, before or during the term of
this Agreement, that are not readily available to the public or that
are maintained as confidential by such person. The Employee shall
maintain in confidence any Confidential Information of third parties
received as a result of the Employee's employment with the Company in
accordance with the Company's obligations to such third parties and the
policies established by the Company.
8. Delivery of Documents upon Termination. The Employee shall deliver to
the company or its designee at the termination of the Employee's
employment all correspondence, memoranda, notes, records, drawings,
sketches, plans, customer lists, product compositions, and other
documents and all copies thereof, made, composed or received by the
Employee, solely or jointly with others, that are in the Employee's
possession, custody, or control at termination and that are related in
any manner to the past, present, or anticipated business or any member
of the Company.
9. No Competition. No Solicitation. Throughout the term of the Agreement
and (i) for a period of two (2) years immediately following any
termination of the Agreement under Section 5(b) or (ii) for a period of
one (1) year immediately following any termination of the Agreement
under Section 5(f) or Voluntary Resignation under Section 5(e), the
Employee shall not directly or indirectly engage in the business of
banking, or any other business in which the Company directly or
indirectly engages during the term of the Agreement; provided, however,
that the restriction in this Section 9 shall apply only to Xxxxxxx,
Polk and adjacent counties in Iowa. For purposes of this Section 9, the
Employee shall be deemed to engage in a business if he directly or
indirectly, engages or invests in, owns manages, operates, controls or
participates in the ownership, management, operation or control of, is
employed by, associated or in any manner connected with, or renders
services or advice to, any business engaged in banking, provided,
however, that the Employee may invest in the securities of any
enterprise (but without otherwise participating in the activities of
such enterprise) if two conditions are met: (a) such securities are
listed on any national or regional securities (exchange or have been
registered under Section 12(g) of the Securities Exchange Act of 1934)
and (b) the Employee does not beneficially own (as defined Rule 13d-3
promulgated under the Securities Exchange Act of 1934) in excess of 1%
of the outstanding capital stock of such enterprise. The provisions of
this paragraph shall survive regardless of the reason for the
Employee's termination.
During the period described in the first paragraph of Section 9 the
Executive will not, directly or indirectly, for the benefit of any bank
or financial institution or any company or other entity affiliated,
directly or indirectly, with another bank or financial institution
other than the Company, solicit the employment or services of, hire, or
assist in the hiring of any person eligible for the Company's
compensation or benefit plans for senior officers or executives.
10. No Tampering. Throughout the term of the Agreement and (i) for a period
of two (2) years immediately following any termination of the Agreement
under Section 5(b), or (ii) for a period of one (1) year immediately
following any termination of the Agreement under Section 5(f) or
Voluntary Resignation under Section 5(e), the Employee shall not
directly or indirectly (a) request, induce or attempt to influence any
existing or prospective customers, vendors or licensors of the Company
to curtail or cancel any business they may transact with the Company;
or (b) request, induce or attempt to influence any employee of the
Company to terminate the Employee's or his employment with the Company.
For purposes of this Section 10, "prospective customers" shall mean
individuals or entities whom the Company or its affiliates have
contacted within the twelve (12) months immediately preceding the
termination of the Agreement. The provisions of this paragraph shall
survive regardless of the reason for the Employee's termination.
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11. Publicity and Advertising. The Employee agrees that the Company may use
the Employee's name, picture, or likeness for any advertising,
publicity, or other business purpose at any time, during the term of
the Agreement by the Company and may continue to use materials
generated during the term of the Agreement for a period of six months
thereafter. The Employee shall receive no additional consideration if
the Employee's name, picture or likeness is so used. The Employee
further agrees that any negatives, prints or other material for
printing or reproduction purposes prepared in connection with the use
of the Employee's name, picture or likeness by the Company shall be and
are the sole property of the Company.
12. Remedies. The Employee acknowledges that a remedy at law for any breach
or attempted breach of the Employee's obligations under Sections 7
through 10 may be inadequate, agrees that the Company may be entitled
to specific performance and injunctive and other equitable remedies in
case of any such breach or attempted breach and further agrees to waive
any requirement for the securing or posting of any bond in connection
with the obtaining of any such injunctive or other equitable relief.
The Company shall have the right to offset against amounts to be paid
to the Employee pursuant to the terms hereof any amounts from time to
time owing by the Employee to the Company. The termination of the
Agreement shall not be deemed to be a waiver by the Company of any
breach by the Employee of this Agreement or any other obligation owed
the Company, and notwithstanding such a termination the Employee shall
be liable for all damages attributable to such a breach.
13. Dispute Resolution. Subject to the Company's right to seek injunctive
relief in court as provided in Section 12 of this Agreement, any
dispute, controversy or claim arising out of or in relation to or
connection to this Agreement, including without limitation any dispute
as to the construction, validity, interpretation, enforceability or
breach of this Agreement, including a claim for indemnification under
Section 14, shall be resolved either as provided by applicable law, or,
at the option of either party, by impartial binding arbitration. In the
event that either the Company or the Employee demands arbitration, the
Employee and the Company agree that such arbitration shall be the
exclusive, final and binding forum for the ultimate resolution of such
claims, subject to any rights of appeal that either party may have
under the Federal Arbitration Act and/or under applicable state law
dealing with the review of arbitration decisions.
(a) Arbitration. Arbitration shall be heard and determined by one
arbitrator, who shall be impartial and who shall be selected
by mutual agreement of the parties; provided, however, that if
the dispute involves more than $1,000,000, then the
arbitration shall be heard and determined by three (3)
arbitrators. If three (3) arbitrators are necessary as
provided above, then (i) each side shall appoint an arbitrator
of its choice within thirty (30) days of the submission of a
notice of arbitration and (ii) the party-appointed arbitrators
shall in turn appoint a presiding arbitrator of the tribunal
within thirty (30) days following the appointment of the last
party-appointed arbitrator. If any party fails or refuses to
appoint an arbitrator, the arbitration shall proceed with one
(1) arbitrator.
(b) Demand for Arbitration. In the event that the Employee or the
Company initially elects to file suit in any court, the other
party will have 60 days from the date that it is formally
served with a summons and a copy of the suit to notify the
party filing the suit of the non-filing party's demand for
arbitration. In that case, the suit must be dismissed by
consent of the parties or by the court on motion, and
arbitration commenced with the arbitrators. In situations
where suit has not been filed, either the Employee or the
Company may initiate arbitration by serving a written demand
for arbitration upon the other party. Such a demand must be
served within twelve months of the events giving rise to the
dispute. Any claim that is not timely made will be deemed
waived.
(c) Proceedings. Unless otherwise expressly agreed in writing by
the parties to the arbitration proceedings:
(i) The arbitration proceedings shall be held in the Polk
County, Iowa, area, and at a site chosen by mutual
agreement of the parties. Or, if the parties cannot
reach agreement on a location within thirty (30) days
of the appointment of the last arbitrator, then at a
site chosen by the arbitrators;
(ii) The arbitrators shall be and remain at all times
wholly independent and impartial;
(iii) The arbitration proceedings shall be conducted in
accordance with the Employment Arbitration Rules of
the American Arbitration Association, as amended from
time to time;
(iv) Any procedural issues not determined under the
arbitral rules selected pursuant to item (iii) above
shall be determined by the law of the place of
arbitration, other than those laws which would refer
the matter to another jurisdiction;
(v) The costs of the arbitration proceedings (including
attorneys' fees and costs) shall be borne in the
manner determined by the arbitrators;
(vi) The arbitrators may grant any remedy or relief that
would have been available to the parties had the
matter been heard in court;
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(vii) The decision of the arbitrators shall be reduced to
writing; final and binding without the right of
appeal; the sole and exclusive remedy regarding any
claims, counterclaims, issues or accounting presented
to the arbitrators; made and promptly paid in United
States dollars free of any deduction or offset; and
any costs or fees incident to enforcing the award
shall to the maximum extent permitted by law, be
charged against the party resisting such enforcement;
(viii) The award shall include interest from the date of any
breach or violation of this Agreement, as determined
by the arbitral award, and from the date of the award
until paid in full, at 6% per annum; and
(ix) Judgment upon the award may be entered in any court
having jurisdiction over the person or the assets of
the party owing the judgment or application may be
made to such court for a judicial acceptance of the
award and an order of enforcement, as the case may
be.
(d) Acknowledgement of Parties. The Company and Employee
understand and acknowledge that this Agreement means that
neither can pursue an action against the other in a court of
law regarding any employment dispute, except for claims
involving workers' compensation benefits or unemployment
benefits, and except as set forth elsewhere in this Agreement,
in the event that either party notifies the other of its
demand for arbitration under this Agreement. The Company and
Employee understand and agree that this Section 13, concerning
arbitration, shall not include any controversies or claims
related to any agreements or provisions (including provisions
in this Agreement) respecting Sections 7 through 10 herein,
which shall not be subject to arbitration.
(e) Consultation. Employee has been advised of the Employee's
right to consult with an attorney prior to entering into this
Agreement.
14. Indemnification. The Employee shall be protected against any and all
legal actions when he is either a party, witness or a participant in
any legal action brought against the Company, West Bank, WB Capital
Management Inc. d/b/a VMF Capital, the Employee or a Board Member. He
will be protected through any programs that cover the outside directors
or other Employees of the Company.
15. Miscellaneous Provisions.
(a) Successors of the Company. The Company will require any
successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company, by agreement in form
and substance satisfactory to the Employee, expressly to
assume and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to
perform it if no such succession had taken place. As used in
this Agreement, "Company" as hereinbefore defined shall
include any successor to its business and/or assets as
aforesaid which executes and delivers the agreement provided
for in this Section 15 or which otherwise becomes bound by all
the terms and provisions of this Agreement by operation of
law.
(b) Employee's Heirs, etc. The Employee may not assign the
Employee's rights or delegate the Employee's duties or
obligations hereunder without the written consent of the
Company. This Agreement shall inure to the benefit of and be
enforceable by the Employee's personal or legal
representatives, executors, administrators, successors, heirs,
distributes, devisees and legatees. If the Employee should die
while any amounts would still be payable to the Employee
hereunder as if he had continued to live, all such amounts,
unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the Employee's designee
or, if there be no such designee, to the Employee's estate.
(c) Notices. Any notice or communication required or permitted
under the terms of this Agreement shall be in writing and
shall be delivered personally, or sent by registered or
certified mail, return receipt requested, postage prepaid, or
sent by nationally recognized overnight carrier, postage
prepaid, or sent by facsimile transmission to the Company at
the Company's principal office and facsimile number in West
Des Moines, Iowa or to the Employee at the address appearing
on the books and records of the Company. Such notice or
communication shall be deemed given (a) when delivered if
personally delivered; (b) five mailing days after having been
placed in the mail, if delivered by registered or certified
mail; (c) the business day after having been placed with a
nationally recognized overnight carrier, if delivered by
nationally recognized overnight carrier, and (d) the business
day after transmittal when transmitted with electronic
confirmation of receipt, if transmitted by facsimile. Any
party may change the address or facsimile number to which
notices or communications are to be sent to it by giving
notice of such change in the manner herein provided for giving
notice. Until changed by notice, the following shall be the
address and facsimile number to which notices shall be sent:
26
If to the Company, to: West Bancorporation, Inc.
0000 00xx Xxxxxx, Xxxxx 000
Xxxx Xxx Xxxxxx, XX. 50266
Fax: 000-000-0000
If to the Employee, to: Xxxxxx X. Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxx Xxx Xxxxxx, XX 00000
(d) Amendment or Waiver. No provisions of this Agreement may be
modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing signed by
the Employee and such officer as may be specifically
designated by the Board (which shall not include the
Employee). No waiver by either party hereto at any time of any
breach by the other party hereto of or compliance with, any
condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party that are
not set forth expressly in this Agreement.
(e) Invalid Provisions. Should any portion of this Agreement be
adjudged or held to be invalid, unenforceable or void, such
holding shall not have the effect of invalidating or voiding
the remainder of this Agreement and the parties hereby agree
that the portion so held invalid, unenforceable or void shall
if possible, be deemed amended or reduced in scope, or
otherwise be stricken from this Agreement to the extent
required for the purposes of validity and enforcement thereof.
(f) Survival of the Employee's Obligations. The Employee's
obligations under this Agreement shall survive regardless of
whether the Employee's employment by the Company is
terminated, voluntarily or involuntarily, by the Company or
the Employee, with or without Cause.
(g) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original
but all of which together will constitute one and the same
instrument.
(h) Governing Law. This Agreement and any action or proceeding
related to it shall be governed by and construed under the
laws of the State of Iowa.
(i) Captions and Gender. The use of Captions and Section headings
herein is for purposes of convenience only and shall not
effect the interpretation or substance of any provisions
contained herein. Similarly, the use of the masculine gender
with respect to pronouns in this Agreement is for purposes of
convenience and includes either sex who may be a signatory.
(j) Entire Agreement. This Agreement, and any attachments,
represents the entire agreement between Company and Employee
concerning the subject matter of Employee's employment and
supersedes any prior agreements.
IN WITNESS WHEREOF, the Employee and a duly authorized Company officer have
signed this Agreement.
THE EMPLOYEE: THE COMPANY:
West Bancorporation, Inc.
/s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxx Xxxxx
----------------------- -------------------
Xxxxxx X. Xxxxxxxxx Xxxxxx Xxxxx
Chair of the Compensation Committee
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