Exhibit 10.4
AMENDED AND
RESTATED
EMPLOYMENT
AGREEMENT
This Amended and Restated Employment
Agreement effective December 31 st , 2008
by and between Nevada Security Bank, a Nevada corporation
(“Bank”) and David A. Funk (“Executive”)
amends and restates the original employment agreement
(“Original Agreement”) dated November 18, 2002, by
and between Bank and Executive.
The Bank and Executive desire to
amend and revise the Original Agreement to incorporate the changes
required by Section 409A of the Internal Revenue Code of 1984,
as amended and make other changes to clarify the Original
Agreement.
Bank desires to employ Executive to
devote Executive’s full time to the business of the Bank, and
Executive desires to be so employed.
The parties agree as
follows:
I.
EMPLOYMENT TERM
Bank agrees to employ Executive, and
Executive agrees to be so employed, in the capacity of
President. Employment shall begin November 18, 2002 and
continue until termination in accordance with this
Agreement.
II.
TIME AND EFFORTS
Executive shall diligently and
conscientiously devote his full and exclusive time and attention
and best efforts in discharging his duties as the Bank’s
President.
III.
BOARD OF DIRECTORS
Executive shall be a member of the
Board of Directors by election by the Bank’s shareholder or
by appointment by the Bank’s Board of Directors, as
determined in the discretion of the Bank’s shareholder or
Board of Directors, and Executive shall at all times discharge his
duties as President in consultation with and under the supervision
of the Bank’s Board of Directors and/ or the Chief Executive
Officer. In the performance of his duties, Executive shall
make his principal office in such place as the Bank’s Board
of Directors and/or the Chief Executive Officer and Executive may
from time to time agree.
IV.
COMPENSATION
Bank shall pay to Executive as
compensation for his services the sum of $140,000 per year payable
semi-monthly.
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V.
EXPENSES
(a)
Business. The Bank shall reimburse Executive for all
reasonable and necessary business expenses incurred in carrying out
his duties under this Agreement. Executive shall present to
the Bank from time to time an itemized account of such expenses in
any form required by the Bank. All reimbursements shall be
made in accord with Bank reimbursement policies, on a timely basis,
but in all events no later than the end of the calendar year
following the year in which reimbursed expenses are
incurred.
(b)
Memberships. The Bank shall pay or reimburse
Executive for social, professional and community membership fees,
including but not limited to, Hidden Valley Country Club,
Prospectors Club, Western Industrial of Nevada, Economic
Development of Western Nevada, American Bankers Association,
Western Independent Bankers and Nevada Bankers. The
reimbursement to Executive of such paid memberships shall be made
in accord with Bank reimbursement policies, on a timely basis, but
in all events no later than the end of the calendar year following
the year in which reimbursed expenses are incurred.
(c)
Automobile. The Bank shall pay Executive a car
allowance of $750.00 a month payable semi-monthly during the term
of employment.
VI.
EXECUTIVE BENEFITS
Executive shall receive the
following during the time the Executive is employed by the
Bank:
(a)
Insurance. Bank paid medical, vision, short and long
term disability as provided under the Bank’s group insurance
coverage and a $525,000 life insurance policy with the Executive to
designate the beneficiary.
(b)
Vacation. Five weeks paid vacation per calendar year
commencing January 1, 2003 accruing at the rate of one week
every 2.4 months. Upon termination Executive shall be paid
for accrued and unused vacation. At the end of the year, any
accrued and unused vacation in excess of twenty-five (25) days
shall be paid out to the Executive in lieu of accrued
vacation.
(c)
Holidays. All paid holidays the Bank
observes.
(d)
Sick leave. Ten paid sick leave days per year
accruing at the rate 2.5 days every three months. Unused sick
days can be accumulated up to 120 days; provided however, Executive
shall not be entitled to any cash or other compensation for unused
sick days.
(e)
401K. Executive is eligible to participate in
Bank’s 401K Plan following 90 days of initial
employment.
(f)
Stock options. 15,000 shares of Bank stock at an
option price of $10 a share subject to the conditions of the
Bank’s Stock Option Plan. The option to purchase the
stock shall vest as follows: 3,000 shares vest immediately on the
first day of employment; thereafter an additional 3,000 shares vest
yearly on the anniversary date of employment for 4
years.
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(g)
Participation in other executive and/or employee-benefit
plans. Nothing in this Agreement shall in any manner
modify, impair, or affect the existing or future rights or
interests of the Executive (a) to receive any executive and/or
employee-benefits to which he would otherwise be entitled, or
(b) as a participant in the present or any future incentive
profit-sharing or bonus plan, stock option plan or pension plan of
the Bank. The rights and interests of the Executive to any
executive and/or employee benefits or as a participant or
beneficiary in or under any or all such plans shall continue in
full force and effect. The Executive shall have the right at
any future time to become a participant or beneficiary under or
pursuant to any and all such plans.
(h)
Retirement Benefits. Upon Executive’s
termination of employment for retirement at an age after Executive
attains age sixty-two, the Bank, at its expense, will provide the
Executive and his eligible dependents the maximum medical and
health benefit available through the Bank’s Group Insurance
program that will not result in federal taxable income for the
Executive for a period equal to the maximum applicable continuation
coverage period under the Consolidated Omnibus Budget
Reconciliation Act of 1985 after Executive’s retirement
(“Post-Employment Covered Period”). If the
Executive or any of his or her covered dependent is eligible to
qualify for governmental healthcare benefits (including, but not
limited to, Medicare benefits) during the Post-Employment Covered
Period, then upon eligibility of such person to qualify for such
governmental benefits the Bank’s obligation to provide the
group insurance benefits aforementioned shall cease and the Bank
will, at its expense, provide such person additional insurance
benefits to supplement the governmental healthcare benefits to
provide the maximum medical and health benefits that will not
result in federal taxable income for the Executive for which
Executive is eligible to qualify for the remainder of the
Post-Employment Covered Period.
These retirement benefits of the
aforementioned paragraph shall not under such paragraph be provided
Executive, if Executive’s employment is terminated
(i) by the Bank for cause, (ii) by the Bank without
cause, (iii) termination of this agreement by any bank
supervisory authority, or (iv) due to a Change of Control
covered under Article X of this agreement.
VII.
TERMINATION FOR
CAUSE
The Bank may terminate this
Agreement at any time by action of its Board of Directors, without
further obligation or liability to the Executive, in the event
that:
(a)
The Executive fails to abide by and/or enforce the Bank’s
written safety and soundness policies; or
(b)
The Executive is convicted of a felony or misdemeanor involving
moral turpitude; or
(c)
State and/or Federal regulators request or order termination of
this Agreement; or
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(d)
The Executive commits any act which could cause termination of
Coverage under the Bank’s Blanket Bond as to the Executive,
as distinguished from termination of such coverage as to the Bank
as a whole; or
(e)
The Executive dies.
VIII.
TERMINATION WITHOUT
CAUSE
In the event the Board of Directors
of the Bank determines that either (i) the continued
association of the Executive with the Bank or (ii) the
performance of his duties by the Executive is not in the best
interest of the Bank, then the Bank may terminate this Agreement by
action of its Board of Directors. In the event of such
termination without cause, the Executive shall be paid as and for
severance and in lieu of any and all other compensation, remedy or
damages, within 10 busin
