EMPLOYMENT AGREEMENT
Exhibit 10.3
THIS AGREEMENT (“Agreement”), by and between the Federal Home Loan Bank of Des Moines, a
federally chartered corporation (“Company”), and Xxxxxx X. Xxxxxxx (“Executive”), is effective as
of April 17, 2009 (the “Effective Date”). In consideration of the mutual covenants set forth
herein, the Company and the Executive hereby agree as follows:
1. Employment. The Company hereby agrees to employ the Executive, and the Executive agrees to
serve the Company, in the capacity of Executive Vice President and Chief Financial Officer in
accordance with the terms and conditions of this Agreement.
2. Period of Employment. The term of this Agreement shall be indefinite and terminate
according to the provisions in Section 10.
3. Executive Representations. Executive represents and warrants to the Company that Executive
is not bound by any restrictive covenants and has no prior or other obligations or commitments of
any kind that would in any way prevent, restrict, hinder or interfere with Executive’s acceptance
of continued employment or the performance of all duties and services hereunder to the fullest
extent of Executive’s ability and knowledge.
4. Duties. During the Period of Employment, the Executive shall be employed as the Company’s
Executive Vice President and Chief Financial Officer with such duties that are assigned from time
to time as appropriate to such position. While employed by the Company, Executive agrees to devote
Executive’s full business time and efforts exclusively on behalf of the Company and to competently
and diligently discharge Executive’s duties. Executive may (i) serve on corporate, civic or
charitable boards or committees, (ii) deliver lectures and fulfill speaking engagements, or (iii)
manage personal affairs, so long as such activities under clauses (i), (ii) and (iii) do not
interfere, in any substantive respect, with the Executive’s responsibilities hereunder or conflict
in any material way with the business of the Company or the Company’s Code of Ethics or any other
applicable policies.
5. Compensation.
(a) Salary. During the Period of Employment, the Company shall pay the Executive an annual
base salary (the “Base Salary”) of not less than $294,100.00, paid in accordance with the Company’s
payroll and compensation practices. The Base Salary shall be reviewed annually. Based upon such
review, the Company may increase the Executive’s Base Salary. Any increase in Base Salary shall
not serve to limit or reduce any other obligation to the Executive under this Agreement.
(b) Bonus Programs. The Executive shall participate in the Company’s Annual Incentive and
Long-Term Incentive Plans. Incentive targets and maximums are set by the Board of Directors and
may increase or decrease based upon market data and/or other studies conducted by the Company and
the Board, at its discretion, but in no event shall Executive’s target under the Company’s Annual
Incentive Plan be set lower than 30% of base salary unless as part of a nondiscriminatory cost
reduction plan applicable to the Bank’s total compensation budget.
6. Retirement Benefits. Executive shall be entitled to participate in the Company’s
retirement benefit programs, including any pension plan, 401(k) plan, or benefit equalization plan
established for senior executives.
7. Other Benefit Plans; Vacation. The Executive and his eligible family members shall be
entitled to participate in any group and/or executive life, hospitalization or disability insurance
plan, health program, vacation policy, or other fringe benefits of the Company on terms generally
applicable to the Company’s senior executives, subject to the terms, conditions and limitations of
such plans and programs.
8. Perquisites. The Company shall provide the Executive the following perquisites, or as
otherwise mutually agreed: financial planning not to exceed $2,000.00 annually.
9. Regular Reimbursed Business Expenses. The Company shall promptly reimburse the Executive
for all expenses and disbursements reasonably incurred by the Executive in the performance of his
duties hereunder during the Period of Employment upon proper submission in accordance with Company
policy.
10. Termination.
(a) Death or Disability. This Agreement and the Period of Employment shall terminate
automatically upon the Executive’s death. If the Company determines in good faith that the
Disability of the Executive has occurred (pursuant to the definition of “Disability” set forth
below), it may give to the Executive written notice of its intention to terminate the Executive’s
employment. In such event, the Executive’s employment with the Company shall terminate effective
on the thirtieth day after receipt by the Executive of such notice given at any time after a
period of ninety (90) consecutive days of Disability or a period of one hundred twenty (120) days
of Disability within any twelve (12) consecutive months, and, in either case, while such
Disability is continuing (“Disability Effective Date”); provided that, within the thirty (30) days
after such receipt, the Executive shall not have returned to full-time performance of the
Executive’s duties. For purposes of this Agreement, “Disability” means the Executive’s inability,
as the result of illness or incapacity, to substantially perform his duties hereunder, with
reasonable accommodation, as evidenced by a certificate signed either by a physician mutually
acceptable to the Company and the Executive or, if the Company and the Executive cannot agree upon
a physician, by a physician selected by agreement of a physician designated by the Company and a
physician designated by the Executive; provided, however, that if such physicians cannot agree
upon a third physician within thirty (30) days, such third physician shall be designated by the
American Arbitration Association.
(b) By the Company for Cause. During the Period of Employment after the Effective Date, the
Company may terminate the Executive’s employment immediately for “Cause.” For purposes of this
Agreement, “Cause” shall mean that Executive:
| (i) | shall have been convicted of (or pled guilty or nolo contendere to) a felony; | ||
| (ii) | shall have committed willful acts of misconduct that materially impair the goodwill or business of the Company or cause material damage to its property, goodwill, or business monetarily or otherwise; | ||
| (iii) | shall have willfully breached the representation in Section 3 of this Agreement; | ||
| (iv) | shall have a willful and continued failure to perform his material duties; or |
| (v) | shall have willfully violated any material policies of the Company contained in the Company’s Code of Ethics to the extent such acts would provide grounds for a termination for Cause with respect to other employees. |
No act or failure to act on the part of the Executive shall be considered “willful” unless it is
done, or omitted to be done, by the Executive in bad faith and without reasonable belief that the
Executive’s action or omission was in the best interest of the Company. A termination of the
Executive’s employment for Cause shall be effected in accordance with the following procedures.
The Company shall give the Executive written notice (“Notice of Cause for Termination”) of its
intention to terminate the Executive’s employment for Cause, setting forth in reasonable detail
the specific conduct of the Executive that it considers to constitute Cause and the specific
provision(s) of this Agreement on which it relies, and stating the date, time and place of the
Board Meeting for Cause. The “Board Meeting for Cause” means a meeting of the Board of Directors
of the Company (“Board”) at which the Executive’s termination for Cause will be considered, that
takes place not less than ten (10) and not more than twenty (20) business days after the Executive
receives the Notice of Cause for Termination. The Executive shall be given an opportunity,
together with counsel, to be heard at the Board Meeting for Cause. The Executive’s termination
for Cause shall be effective when and if a resolution is duly adopted at the Board Meeting for
Cause by a two-thirds vote of the entire membership of the Board of the Company, stating that in
the good faith opinion of the Board of the Company, the Executive conducted himself as described
in the Notice of Cause for Termination, and that such conduct constitutes Cause under this
Agreement.
(c) By Executive for Good Reason. During the Period of Employment, the Executive’s
employment hereunder may be terminated by the Executive for Good Reason upon written notice. For
purposes of this Agreement, “Good Reason” shall mean (i) the assignment of duties to Executive
that are materially and adversely inconsistent with Executive’s position, (ii) any material
diminution in Executive’s authority, duties or responsibilities, (iii) a reduction in Executive’s
Base Salary or annual and long-term bonus opportunity unless as part of a nondiscriminatory cost
reduction plan applicable to the Bank’s total compensation budget, (iv) a material change by the
Company in the geographic location in which the Executive is required to perform his services, or
(v) material breach of this Agreement by the Company. If (I) Executive provides written notice to
the Company of the occurrence of Good Reason within ninety (90) days after Executive has knowledge
of the circumstances constituting Good Reason, which notice shall specifically identify the
circumstances which Executive believes constitute Good Reason; (II) the Company fails to correct
the circumstances within thirty (30) days after receiving such notice; and (III) Executive resigns
fifteen (15) days after the Company fails to correct such circumstances; then Executive shall be
considered to have terminated for Good Reason for purposes of this Agreement.
(d) Other than for Cause or Good Reason. The Executive or the Company may terminate this
Agreement for any reason other than for Good Reason or Cause, respectively, upon ninety (90) days’
written notice to the Company or Executive, as the case may be. If the Executive terminates the
Agreement for any reason, he shall have no liability to the Company or its affiliates solely as a
result thereof. If the Company terminates the Agreement, or if the Agreement terminates because of
the death of the Executive, or if, as a result of a merger, consolidation, or other corporate
combination, the obligations of the Company shall be as set forth in Section 11 hereof.
(e) Notice of Termination. A termination by the Company or by the Executive sha1l be
communicated by a Notice of Termination to the other party hereto given in accordance with Section
23 of this Agreement. For purposes of this Agreement, a “Notice of Termination” means a written
notice that (i) indicates the specific termination provision in this Agreement relied upon, (ii)
sets forth in reasonable
detail, if necessary, the basis for termination of the Executive’s employment under the provision
so indicated, and (iii) if the Date of Termination (as defined below) is other than the date of
receipt of such notice, specifies the termination date. The failure by the Executive or Company to
set forth in the Notice of Termination any fact or circumstance which contributes to a showing of
the basis for termination shall not waive any right of such party hereunder or preclude such party
from asserting such fact or circumstance in enforcing his or its rights hereunder.
(f) Date of Termination. “Date of Termination” means the date specified in the Notice of
Termination, provided, however, that if the Executive’s employment is terminated by reason of death
or Disability, the Date of Termination shall be the date of death of the Executive or the
Disability Effective Date, as the case may be.
11. Obligations of the Company Upon Termination. The following provisions describe the
obligations of the Company to the Executive under this Agreement upon termination of his
employment. However, except as explicitly provided in this Agreement, nothing in this Agreement
shall limit or otherwise adversely affect any rights which the Executive may have under applicable
law, under any other agreement with the Company, or under any compensation, pension, thrift or
other benefit plan, program, policy or practice of the Company.
(a) Termination by the Company for Cause, by the Executive without Good Reason, or due to
Death or Disability. If the Executive’s employment is terminated by the Company for Cause or by
the Executive without Good Reason, or due to the Executive’s death or Disability, he shall be
entitled to his Base Salary, accrued but unpaid bonus for any year prior to the year of
termination, and accrued vacation through his Date of Termination and all other vested benefits
under the terms of the Company’s employee benefit plans, subject to the terms of such plans.
(b) Termination by the Company without Cause or by the Executive for Good Reason or by Reason
of Merger or Change of Control. In addition to the items in Section 11(a), if the Executive’s
employment is terminated by the Company without Cause or by the Executive for Good Reason or
because of merger or change of control (in a situation where cause does not also exist), he shall
be entitled, upon execution of a release of claims (exclusive of claims for indemnification under
Section 13 or under Company benefit plans) in a form reasonably acceptable to the Company and
without subsequent revocation within the period described in such release, to severance payments,
in lieu of any other severance benefits, equal to one (1) times the Executive’s Base Salary, as in
effect on the Date of Termination, plus (i) one (1) times Executive’s targeted annual incentive
award in effect for the calendar year in which the Date of Termination occurs (or the targeted
annual incentive award for the prior year if such has not then been determined), (ii) the annual
incentive award for the calendar year in which the Date of Termination occurs and prorated for the
portion of the calendar year in which the Executive was employed, (iii) the unpaid long-term
incentive award for any Performance Period (as such term is defined under the Company’s Long-Term
Incentive Plan Document (the “LTIP”) ending prior to the year in which the Date of Termination
occurs, and (iv) a pro-rated long-term incentive award for any long-term incentive awards for which
the Performance Period has not ended as of the Date of Termination, with such pro-rated award to be
calculated in accordance with the terms of the LTIP as if the termination was due to death,
disability or normal retirement. The Executive also shall be entitled to any benefits mandated
under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), provided that the Company
will continue paying its portion of the medical and/or dental insurance premiums for the one year
period following the Date of Termination. The annual and long-term incentive awards provided under
this Section 11(b), (ii) and (iv) will be paid based at target for individual/team goals and based
on the calendar year actual results for Company-wide goals, and at the regular time that such
payments are made to all employees in the plans, and shall be payable notwithstanding any terms of
such plans to the contrary which otherwise require continued employment to receive an award. The
Base Salary amount
and the amounts provided for under this Section 11(b), (i) and (iii) shall be paid in a lump sum
within ten (10) days of the date the release becomes effective. Payments under this Section 11(b)
shall be paid or provided only at the time of a termination of the Executive’s employment that
constitutes a “separation from service” within the meaning of Section 409A of the Internal Revenue
Code of 1986, as amended (“Code”) and the regulations and guidance promulgated thereunder.
Further, if the Executive is a “specified employee” as such term is defined under Section 409A of
the Code and the regulations and guidance promulgated thereunder, any payments described under this
Section 11(b) shall be delayed for a period of six (6) months following the Executive’s separation
from service to the extent and up to an amount necessary to ensure such payments are not subject to
the penalties and interest under Section 409A of the Code. If the payments are delayed as a result
of the previous sentence, then on the first day following the end of such six (6) month period (or
such earlier date upon which such amount can be paid under Section 409A of the Code without
resulting in a prohibited distribution), the Company shall pay the Executive a lump sum amount
equal to the cumulative amount that would have otherwise been payable to the Executive during such
period, plus interest credited from the date of the Executive’s separation from service to the date
of payment at the “applicable federal rate” provided for in Section 7872(f)(2)(A) of the Code in
effect as of the date of such separation from service.
12. Mitigation. In no event shall the Executive be obligated to seek other employment or take
any other action by way of mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement. Any severance benefits payable to the Executive shall not be subject
to reduction for any compensation received from other employment.
13. Indemnification. The Company shall maintain, for the benefit of the Executive, director
and officer liability insurance in form at least as comprehensive as, and in an amount that is at
least equal to, that maintained by the Company for its Directors. In addition, the Executive shall
be indemnified by the Company against liability as an officer of the Company and any subsidiary or
affiliate of the Company to the maximum extent permitted by applicable law provided, however, that
the Company need not indemnify Executive for actions taken in bad faith, fraud or for breach of
Executive’s fiduciary duties to the Company. The Executive’s rights under this Section 13 shall
continue so long as he may be subject to such liability, whether or not this Agreement may have
terminated prior thereto.
14. Executive Covenants.
(a) General. The Executive and the Company understand and agree that the purpose of the
provisions of this Section 14 is to protect legitimate business interests of the Company, as more
fully described below, and is not intended to impair or infringe upon the Executive’s right to
work, earn a living, or acquire and possess property from the fruits of his labor. The Executive
hereby acknowledges that the post-employment restrictions set forth in this Section 14 are
reasonable and that they do not, and will not, unduly impair his ability to earn a living after the
termination of his employment with the Company. Therefore, subject to the limitations of
reasonableness imposed by law upon restrictions set forth herein, the Executive shall be subject to
the restrictions set forth in this Section 14.
(b) Definitions. The following capitalized terms used in this Section 14 shall have the
meanings assigned to them below, which definitions shall apply to both the singular and the plural
forms of such terms.
“Confidential Information” means any confidential or proprietary information possessed by the
Company without limitation, any confidential “know-how”, customer lists, details of client or
consultant contracts, current and anticipated customer requirements, pricing policies, price lists,
market studies, business plans, operational methods, marketing plans or strategies, product
development techniques or plans, computer software programs (including object code and source
code), data and documentation, data
base technologies, systems, structures and architectures, inventions and ideas, past, current and
planned research and development, compilations, devices, methods, techniques, processes, financial
information and data, business acquisition plans, new personnel acquisition plans and any other
information that would constitute a trade secret under the common law or statutory law of the State
of Iowa.
“Person” means any individual or any corporation, partnership, joint venture, association or other
entity or enterprise.
“Principal or Representative” means a principal, owner, partner, shareholder, joint venturer,
member, trustee, director, officer, manager, employee, agent, representative or consultant.
“Protected Employees” means employees of the Company or its affiliated companies who were employed
by the Company or its affiliated companies at any time within six (6) months prior to the Date of
Termination.
“Restricted Period” means the period of the Executive’s employment by the Company plus a period
extending two (2) years from the Date of Termination.
“Restrictive Covenants” means the restrictive covenants contained in Section 10(c) and (d) hereof.
(c) Restriction on Disclosure and Use of Confidential Information. The Executive understands
and agrees that the Confidential Information constitutes a valuable asset of the Company and its
affiliated entities, and may not be converted to the Executive’s own use. Accordingly, the
Executive hereby agrees that the Executive shall not, directly or indirectly, at any time reveal,
divulge or disclose to any Person not expressly authorized by the Company any Confidential
Information, and the Executive shall not, directly or indirectly, at any time use or make use of
any Confidential Information in connection with any business activity other than that of the
Company. The parties acknowledge and agree that this Agreement is not intended to, and does not,
alter either the Company’s rights or the Executive’s obligations under any state or federal
statutory or common law regarding trade secrets and unfair trade practices.
(d) Nonsolicitation of Protected Employees. The Executive understands and agrees that the
relationship between the Company and each of its Protected Employees constitutes a valuable asset
of the Company and may not be converted to the Executive’s own use. Accordingly, the Executive
hereby agrees that during the Restricted Period the Executive shall not directly or indirectly on
the Executive’s own behalf or as a Principal or Representative of any Person solicit any Protected
Employee to terminate his or her employment with the Company.
(e) Exceptions from Disclosure Restrictions. Anything herein to the contrary notwithstanding,
the Executive shall not be restricted from disclosing or using Confidential Information that: (i)
is or becomes generally available to the public other than as a result of an unauthorized
disclosure by the Executive or his agent; (ii) becomes available to the Executive in a manner that
is not in contravention of applicable law from a source (other than the Company or its affiliated
entities or one of its or their officers, employees, agents or representative) that is not known by
the Executive to be bound by a confidential relationship with the Company or its affiliated
entities or by a confidentiality or other similar agreement; (iii) was known to the Executive on a
non-confidential basis and not in contravention of applicable law or a confidentiality or other
similar agreement before its disclosure to the Executive by the Company or its affiliated entities
or one of its or their officers, employees, agents or representatives; (iv) loses its status as
confidential information for any reason; or (v) is required to be disclosed by law, court order or
other legal process; provided, however, that in the event disclosure is required by law, court
order or legal process, the Executive shall provide the Company with prompt notice of such
requirement
so that the Company may seek an appropriate protective order prior to any such required disclosure
by the Executive.
15. Enforcement of the Restrictive Covenants.
(a) Rights and Remedies upon Breach. In the event the Executive breaches, or threatens to
commit a breach of, any of the provisions of the Restrictive Covenants, the Company shall have the
right and remedy to seek to enjoin, preliminarily and permanently, the Executive from violating or
threatening to violate the Restrictive Covenants and to have the Restrictive Covenants specifically
enforced by any court of competent jurisdiction, it being agreed that any breach or threatened
breach of the Restrictive Covenants may cause irreparable injury to the Company and that money
damages would not provide an adequate remedy to the Company. The rights referred to in the
preceding sentence shall be independent of any others and severally enforceable, and shall be in
addition to, and not in lieu of, any other rights and remedies available to the Company at law or
in equity.
(b) Severability of Covenants. If any court determines that any Restrictive Covenants, or any
part thereof, are invalid or unenforceable, the remainder of the Restrictive Covenants shall not
thereby be affected and shall be given full effect, without regard to the invalid portions.
16. Cooperation in Future Matters. The Executive hereby agrees that, for a period of one (1)
year following his Date of Termination, he shall cooperate with the Company’s reasonable requests
relating to matters that pertain to the Executive’s employment by the Company, including, without
limitation, providing information or limited consultation as to such matters, participating in
legal proceedings, investigations or audits on behalf of the Company, or otherwise making himself
reasonably available to the Company for other related purposes. Any such cooperation shall be
performed at times scheduled taking into consideration the Executive’s other commitments, and the
Executive shall be compensated at a reasonable hourly or per diem rate to be agreed by the parties.
The Executive shall also be reimbursed for all reasonable out of pocket expenses. The Executive
shall not be required to perform such cooperation to the extent it conflicts with any requirements
of exclusivity of service for or other obligations to be performed on behalf of another employer or
otherwise, nor in any manner that in the good faith belief of the Executive would conflict with his
rights under or ability to enforce this Agreement.
17. Assistance with Claims. Executive agrees that, for the period beginning on the Effective
Date, and continuing for a reasonable period after Executive’s termination date, Executive will
assist the Company in defense of any claims that may be made against the Company, and will assist
the Company in the prosecution of any claims that may be made by the Company, to the extent that
such claims may relate to services performed by Executive for the Company. Executive agrees to
promptly inform the Company if he becomes aware of any lawsuits involving such claims that may be
filed against the Company. The Company agrees to provide legal counsel to Executive in connection
with such assistance (to the extent legally permitted), and to reimburse Executive for all of
Executive’s reasonable out-of-pocket expenses associated with such assistance, including travel
expenses. For periods after Executive’s employment with the Company terminates, the Company agrees
to provide reasonable compensation to Executive for such assistance. Executive also agrees to
promptly inform the Company, if permitted by law, if he is asked to assist in any investigation of
the Company (or its actions) that may relate to services performed by Executive for the Company,
regardless of whether a lawsuit has then been filed against the Company with respect to such
investigation. The Executive shall not be required to perform such cooperation to the extent it
conflicts with any requirements of exclusivity of service for or other obligations to be performed
on behalf of another employer or otherwise, nor in any manner that in the good faith belief of the
Executive would conflict with his rights under or ability to enforce this Agreement.
18. Publicity. Neither party shall issue, without consent of the other party, which shall not
be unreasonably withheld, any press release or make any public announcement with respect to this
Agreement or the employment relationship between them except as may be required by applicable law
or the rules and regulations of the Securities Exchange Commission if the Company were a registrant
under either the Securities Act of 1933 or the Securities Exchange Act of 1934. Following the date
of this Agreement and regardless of any dispute that may arise in the future, Executive and the
Company jointly and mutually agree that they will not disparage, criticize or make statements which
are negative, detrimental or injurious to the other to any individual, company or client, including
within the Company.
19. Withholding. Anything in this Agreement to the contrary notwithstanding, all payments
required to be made by the Company hereunder to the Executive shall be subject to withholding, at
the time payments are actually made to the Executive and received by him, of such amounts relating
to taxes as the Company may reasonably determine it should withhold pursuant to any applicable law
or regulation. In lieu of withholding such amounts, in whole or in part, the Company may, in its
sole discretion, accept other provision for payment of taxes as required by law, provided that it
is satisfied that all requirements of law as to its responsibilities to withhold such taxes have
been satisfied.
20. Arbitration. Any dispute or controversy between the Company and the Executive, whether
arising out of or relating to this Agreement, the breach of this Agreement, or otherwise, shall be
settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance
with its National Rules for the Resolution of Employment Disputes then in effect, and judgment on
the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Any
arbitration shall be held before a single arbitrator who shall be selected by the mutual agreement
of the Company and the Executive, unless the parties are unable to agree to an arbitrator, in which
case, the arbitrator will be selected under the procedures of the AAA. The arbitrator shall have
the authority to award any remedy or relief that a court of competent jurisdiction could order or
grant, including, without limitation, the issuance of an injunction. However, either party may,
without inconsistency with this arbitration provision, apply to any court having jurisdiction over
such dispute or controversy and seek interim provisional, injunctive or other equitable relief
until the arbitration award is rendered or the controversy is otherwise resolved. Except as
necessary in court proceedings to enforce this arbitration provision or an award rendered
hereunder, or to obtain interim relief, neither a party nor an arbitrator may disclose the
existence, content or results of any arbitration hereunder without the prior written consent of the
Company and the Executive. The Company and the Executive acknowledge that this Agreement evidences
a transaction involving interstate commerce. Notwithstanding any choice of law provision included
in this Agreement, the United States Federal Arbitration Act shall govern the interpretation and
enforcement of this arbitration provision. The arbitration proceeding shall be conducted in Des
Moines, Iowa or such other location to which the parties may agree. The Company shall be
responsible for the costs of any arbitrator appointed hereunder and the underlying expenses imposed
by the American Arbitration Association.
21. Successors.
(a) This Agreement is personal to the Executive and without the prior written consent of the
Company shall not be assignable by the Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive’s
heirs and legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
(c) The Company shall require any successor (whether direct or indirect, by purchase, merger,
reorganization, consolidation, acquisition of property or stock, liquidation, or otherwise) to all
or a substantial portion of its assets, by agreement in form and substance reasonably satisfactory
to the Executive, 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 this Agreement if no such succession
had taken place. Regardless of whether such an agreement is executed, this Agreement shall be
binding upon any successor of the Company in accordance with the operation of law, and such
successor shall be deemed the “Company” for purposes of this Agreement.
(d) As used in this Agreement, the term “Company” shall include any successor to the Company’s
business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation
of law, or otherwise.
22. Attorneys’ Fees. The Company agrees to pay all legal fees and related expenses (including
the costs of experts, evidence and counsel) incurred by the Executive as a result of the Executive
seeking to obtain or enforce any right or benefit set out in this Agreement or by any other plan or
arrangement maintained by the Company under which the Executive may be entitled to receive
benefits, provided the Executive prevails on a material part of the claim.
23. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with the laws of Iowa,
without reference to principles of conflicts of laws. The captions of this Agreement are not part
of the provisions hereof and shall have no force or effect. This Agreement may not be amended or
modified otherwise than by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing and shall be given by
hand delivery to the other party, by overnight courier, or by registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Executive:
At the most recent address on file with the Company
If to the Company:
Attn: Human Resources Director
Or to such other address as either of the parties shall have furnished to the other in writing in
accordance herewith. Notice and communications shall be effective when actually received by the
addressee.
(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement.
(d) Any party’s failure to insist upon strict compliance with any provision hereof shall not
be deemed to be a waiver of such provision or any other provision hereof.
(e) This Agreement supersedes any prior employment agreement or understandings, written or
oral between the Company and the Executive and contains the entire understanding of the Company and
the Executive with respect to the subject matter hereof.
(f) This Agreement may be executed simultaneously in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates written below.
| FEDERAL HOME LOAN BANK OF DES MOINES |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx, President | ||||
| and Chief Executive Officer | ||||
| Date: April 17, 2009 | ||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Date: April 17, 2009 | ||||
