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Exhibit 10.24
EMPLOYMENT AGREEMENT
AGREEMENT
entered into as of this 23
rd day
of May, 2008, by and between WEST BANCORPORATION, INC., an Iowa
corporation (the “Company”), and THOMAS E. STANBERRY
(“Stanberry”), to be effective as of the date stated
above (“Effective Date”).
WITNESSETH:
WHEREAS,
Stanberry has been employed as the Company’s Chairman,
President, and Chief Executive Officer (“CEO”), as
West Bank’s Chairman and CEO, and as WB Capital
Management Inc.’s Chairman; and
WHEREAS,
the Company wishes that Stanberry continue such employment
pursuant to the terms and conditions hereof, and in order to
induce Stanberry to enter into this agreement (the
“Agreement”) and to secure the benefits to accrue
from his performance hereunder, is willing to undertake the
obligations assigned to it herein; and
WHEREAS,
Stanberry is willing to continue his employment as described
above under the terms hereof and to enter into the
Agreement;
NOW
THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable
consideration, the receipt of which is hereby acknowledged,
the parties hereto agree as follows:
1.
Positions; Duties; Responsibilities .
1.1
Stanberry
shall serve as Chairman, President, and CEO of the Company,
Chairman and CEO of West Bank, and Chairman of the Board of
Directors of WB Capital Management Inc. Stanberry shall at all
times report to and be subject to the supervision, control,
and direction of the Board of Directors of the Company (the
“Board”). Stanberry shall at all times be the most
senior executive officer of the Company and its subsidiaries.
Subject only to Stanberry’s duty to report to the Board,
Stanberry’s responsibilities and authorities hereunder
shall include day-to-day and strategic authority over the
Company and its subsidiaries, authority over all operations of
the Company and its subsidiaries, and the duty and authority
to hire, make employment decisions, and terminate all
subordinates employed by the Company or its subsidiaries.
Stanberry shall report directly and exclusively to the Board,
and all other officers, employees, and consultants of the
Company shall (except to the extent otherwise prescribed by
law, regulation, or principles of good corporate governance)
report directly (or indirectly through subordinates) to
Stanberry. Stanberry shall also promote, to the extent
permitted by law, the business of the Company. Stanberry shall
have such other responsibilities and authorities consistent
with the status, titles, and reporting requirements set forth
herein as are appropriate to said positions, subject to change
(other than diminution in position, authority, duties, or
responsibilities) from time to time by the Board.
1.2
During
the course of his employment, Stanberry agrees to devote his
full time and attention and give his best efforts and skills
to furthering the business and interests of the Company,
which—subject to the mutual agreement of Stanberry and
the Board, which shall not be unreasonably withheld—may
include Stanberry allocating reasonable time and efforts on
behalf of charitable, civic, professional organizations, and
boards of other corporations.
2.
Term .
Subject
to the terms and conditions hereof, the Company agrees to
employ, and Stanberry hereby accepts employment, for an
Initial Term commencing on the Effective Date and ending
December 31, 2010. This Agreement will be renewed annually
without written notice on each January 1 hereafter for a three
year period, provided the Company has not given notice of
nonrenewal by November 30 of the preceding year. Accordingly,
and by way of example, the intent of the parties is that as of
January 1, 2009, the Term will be a rolling three year term
beginning on each subsequent January 1, unless timely notice
of nonrenewal is given. In the event of a timely notice of
nonrenewal, this Agreement will expire at the end of the
Initial Term or any then existing three-year term. References
to “Initial Term” or “Term” in this
Agreement mean either the Initial Term or any subsequent Term
as the context requires.
3.
Compensation and Benefits.
3.1
Base Salary .
The Company shall pay Stanberry a base salary during the Term of
this Agreement at the minimum annual rate of Two-hundred fifty
thousand Dollars ($250,000) (“Base Salary”), payable in
accordance with the standard payroll practices of the Company. It
is understood that the Base Salary is to be Stanberry’s
minimum annual compensation during the Term. Stanberry’s Base
Salary will be reviewed by the Compensation Committee of the Board
at least annually, and may be increased (but not reduced). If the
Base Salary stated above is increased, the new Base Salary shall be
noted in Board minutes and shall become a term of this Agreement by
reference without need for attachment or addendum.
3.2
Annual Bonus/Incentive Target/Incentive Payment
.
In addition to other compensation to be paid under Section 3, each
year during the Term of this Agreement, Stanberry shall be eligible
for an annual incentive bonus (“Annual Bonus”). An
annual incentive bonus target (“Incentive Target”)
shall be set for each year by the Board, based on a recommendation
of the Compensation Committee. The annual incentive payment
actually awarded and paid to Stanberry for each year
(“Incentive Payment”) will be determined by the Board
in its sole discretion, with consideration to the Compensation
Committee recommendation, and paid by the Company as soon as
reasonably possible after the end of each fiscal year.
3.3
Equity Appreciation Plans. In
addition to other compensation to be paid under this Section 3, the
Company may grant stock options, stock appreciation rights,
restricted stock, or other forms of equity participation rights to
Stanberry as a participant, if a plan is adopted by the
Company.
3.4
Vacation. Stanberry
shall be entitled to not less than 25 days of paid time off, plus
all Company-recognized holidays, during each full year of
employment hereunder in accordance with the general terms of the
vacation policy adopted by the Company. Upon Termination under
Section 4 of this Agreement, Stanberry will be paid for any accrued
vacation that has not been taken through the date of
Termination.
3.5
Reimbursement of Expenses. The
Company shall reimburse Stanberry in accordance with
Company’s expense reimbursement policies for all reasonable,
ordinary, and necessary business expenses incurred by Stanberry
while performing duties on behalf of the Company. In addition, the
Company shall pay Stanberry’s monthly dues at Des Moines Golf
and Country Club, or one other similar club, and expenses related
to Stanberry’s use of such club for matters related to the
Company’s business.
3.6
Employee Benefits. Stanberry
shall be entitled to receive any perquisites and participate in any
employee benefit plans, including profit-sharing plans, now
existing or established hereafter generally available to employees
and/or senior officers of the Company, provided Stanberry is
otherwise qualified and eligible for such benefits. As part of its
normal course of business, the Company may amend and/or terminate
any such employee benefits or plans.
3.7
Benefits Not in Lieu of Compensation. No
benefit or perquisite provided to Stanberry shall be deemed to be
in lieu of Base Salary, Annual Bonus, or other compensation,
provided that the reporting of any benefits shall be consistent
with IRS regulations.
3.8
Short-Term Disability. Any
period of short-term disability experienced by Stanberry shall be
treated under the Company’s Short-Term Disability benefits
policy(ies).
3.9
Indemnification and Insurance .
Except for disputes between the parties concerning this Agreement,
the Company shall protect and indemnify Stanberry against any and
all legal claims or actions involving him as a consequence of his
employment hereunder to the maximum extent allowed under the Iowa
Business Corporation Act. The Company shall provide Stanberry the
maximum insurance coverage provided any other employee or director
of the Company. The Company agrees to continue Stanberry’s
coverage under such directors and officers’ liability
insurance policies as shall from time to time be in effect for
Company officers and employees for not less than six years
following Stanberry’s termination of employment.
4.
Consequences of Termination of Employment and/or Change of
Control .
4.1
Death .
In the event of Stanberry’s death during the Term of this
Agreement, this Agreement shall terminate, and all obligations to
Stanberry shall cease as of the date of death except that, (a)
within ten (10) business days of termination, the Company shall pay
to Stanberry’s designated beneficiary, as defined below in
this Section, or the legal representative of his estate a sum equal
to one month of Base Salary and Seventy-Five percent (75%) of the
amount of his Incentive Target prorated to the date of
death—provided, however, that if Stanberry’s death is
preceded by a leave of absence associated with a period of
disability, any Incentive Target shall be restricted to the fiscal
year in which such leave commenced and prorated to the last date
worked. All rights and benefits of Stanberry under the benefit
plans and programs of the Company in which Stanberry is a
participant, will be provided as determined in accordance with the
terms and provisions of such plans and programs. All awards of
restricted stock, stock options, and any other benefits under any
long-term incentive plans shall be handled in accordance with the
terms of the relevant plan and agreements entered into between
Stanberry and the Company with respect to such awards.
Stanberry
may designate a beneficiary by filing a written designation
with the head of personnel of the Company. Stanberry may
revoke or modify the designation at any time by filing a new
designation. However, designations will only be effective if
signed by Stanberry and received by the Company during
Stanberry’s lifetime. Stanberry’s beneficiary
designation shall be deemed automatically revoked if the
beneficiary predeceases Stanberry, or if Stanberry names a
spouse as beneficiary and the marriage is subsequently
dissolved. If Stanberry dies without a valid beneficiary
designation, all payments shall be made to Stanberry’s
estate.
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, incompetent, 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.
4.2
Permanent Disability .
If Stanberry shall become permanently incapacitated by reasons of
sickness, accident, or other physical or mental disability
(“Permanent Disability”) as defined hereunder during
the Term of this Agreement, this Agreement and all obligations to
Stanberry shall cease except as provided below. Permanent
Disability shall be determined in one of two ways: (1) Stanberry
shall be considered to be Permanently Disabled for purposes of this
Agreement if he becomes entitled to Long-Term Disability benefits
under the Company’s Long-Term Disability Plan, in which case,
this Agreement and all obligations to Stanberry shall cease except
that for a period of twelve (12) months, the Company shall
supplement Stanberry’s Long-Term Disability payments to the
extent necessary for the Long-Term Disability payments plus the
supplemental payments to equal Stanberry’s Base Pay as
defined in Section 3.1 herein; (2) alternatively, if Stanberry
becomes permanently incapacitated and such incapacitation is
certified by a physician chosen by the Company and reasonably
acceptable to Stanberry (if he is then able to exercise sound
judgment), and Stanberry shall therefore be unable to perform his
normal duties hereunder, then the employment of Stanberry hereunder
and this Agreement may be terminated by Stanberry or the Company
upon thirty (30) days’ written notice to the other party
following such certification. Should Stanberry not acquiesce (or
should he be unable to acquiesce) in the selection of the
certifying doctor, a doctor chosen by Stanberry (or if he is not
then able to exercise sound judgment, by his spouse or personal
representative) and reasonably acceptable to the Company shall be
required to concur in the medical determination of incapacitation,
failing which, the two doctors shall designate a third doctor whose
decision shall be determinative as of the end of the calendar month
in which such concurrence or third-doctor decision, as the case may
be, is made. After the final certification is made and the 30-day
written notice is provided, the Company shall pay to Stanberry, at
such times as Base Salary provided for in Section 3.1 of this
Agreement would normally be paid, Stanberry’s then-current
Base Salary for a period of twelve (12) months. Under either
determination of Permanent Disability, Stanberry shall be paid the
amount of Seventy-Five percent (75%) of the Incentive Target for
the year in which disability is certified prorated to the last day
worked. If no Incentive Target has been determined for the year in
which final certification occurs, the last determined Incentive
Target shall apply.
Following
termination pursuant to either of the above alternatives, any
rights and benefits Stanberry may have under the employee
benefit plans and programs of the Company in which Stanberry
is a participant shall be determined in accordance with the
terms and provisions of such plans and programs. All awards of
restricted stock, stock options and any other benefits under
any long-term incentive plans shall be handled in accordance
with the terms of the relevant plan and agreements entered
into between Stanberry and the Company with respect to such
awards.
4.3
Due Cause .
The Company may terminate Stanberry’s employment, remove him
as an officer and director of the Company and its subsidiaries, and
terminate this Agreement at any time for Due Cause. In the event of
such termination for Due Cause, Stanberry shall continue to receive
Base Salary payments provided for in this Agreement only through
the date of such termination for Due Cause, and Stanberry shall be
entitled to no further compensation under this Agreement, except
that any rights and benefits Stanberry may have under the employee
benefit plans and programs of the Company or its subsidiaries in
which Stanberry is a participant shall be determined in accordance
with the terms and provisions of such plans and programs. Stanberry
understands and agrees that in the event of the termination of
employment, removal as an officer and director, and termination of
this Agreement pursuant to this Section 4.3: (a) all awards of
restricted stock, stock options, and any other benefits under
long-term incentive plans shall be handled in accordance with the
terms of the relevant plan and agreements entered into between
Stanberry and the Company with respect to such awards; and (b) the
Company shall have no obligation to pay any Annual Bonus to
Stanberry under the terms of this Agreement; but (c) the
obligations of Stanberry under Sections 7 and 8 of this Agreement
shall remain in full force and effect.
The
term “Due Cause” shall mean (i) the willful and
continued failure of Stanberry to substantially perform his
duties with the Company (other than any such failure resulting
from Permanent Disability), after a demand for substantial
performance is delivered to Stanberry by the Board that
specifically identifies the manner in which Stanberry has not
substantially performed his duties; (ii) willful misconduct by
Stanberry that is materially injurious to the Company or its
subsidiaries, monetarily or otherwise; (iii) gross negligence
in the performance of duties assumed pursuant to this
Agreement or gross neglect of such duties; or (iv) conviction
for a felony or a serious misdemeanor involving moral
turpitude. For purposes of this definition, no act, or failure
to act, on the part of Stanberry shall be considered
“willful” unless it is done, or omitted to be
done, by Stanberry in bad faith and without reasonable belief
that Stanberry’s action or omission was in the best
interests of the Company or its subsidiaries. Any act, or
failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board or based upon the advice
of the General Counsel of the Company shall be conclusively
presumed to be done, or omitted to be done, by Stanberry in
good faith and in the best interests of the Company.
Notwithstanding the foregoing, Stanberry shall not be deemed
to have been terminated for Due Cause unless and until there
has been delivered to him a copy of a resolution duly adopted
by the affirmative vote of at least ¾ (three quarters)
of the Board (excluding Stanberry) at a meeting of the Board
called and held for such purpose.
4.4
Without Cause .
The other provisions of this Agreement notwithstanding, the Company
may terminate Stanberry’s employment, remove him as an
officer and director, and terminate this Agreement at any time for
whatever reason it deems appropriate with or without cause and with
or without prior notice. In the event of such a termination of
Stanberry’s employment and this Agreement, Stanberry shall
have no further obligations of any kind under or arising out of the
Agreement (except for the obligations of Stanberry under Sections 7
and 8 of this Agreement), and the Company shall be obligated to
promptly pay Stanberry only the following “Severance
Payment”: Three times Stanberry’s Base Salary as of the
date of Termination Without Cause —provided, however, that in
the event that as a result of such termination of employment,
Stanberry would otherwise be entitled to a Change of Control
Benefit under Section 4.7 of this Agreement, Stanberry shall be
entitled to elect either: (i) the Severance Payment described
above, or (ii) the Change of Control Benefit described in Section
4.7 of this Agreement, but in no event shall he be entitled to both
payments. Payment shall be made in a lump sum within 60 days of the
date of termination. In addition, the Company shall pay the
insurance premiums to provide Stanberry family health coverage
under COBRA for one year after Stanberry ceases employment by the
Company.
Stanberry
agrees that the payments described in this Section 4.4 shall
be full and adequate compensation to Stanberry for all damages
Stanberry may suffer as a result of the termination of his
employment pursuant to this Section 4.4, and in consideration
of the payments and benefits provided in this Section 4.4,
Stanberry agrees to execute a waiver and release agreement
acceptable to the Company—provided, however, that except
as specifically provided for under this Section 4.4, any
rights and benefits Stanberry may have under the employee
benefit plans and programs of the Company or its subsidiaries
in which Stanberry is a participant shall be determined in
accordance with the terms and provisions of such plans and
programs. All awards of restricted stock, stock options, and
any other benefits under any long-term incentive plans shall
be handled in accordance with the terms of the relevant plan
and agreements entered into between Stanberry and the Company
with respect to such awards.
4.5
Employee Voluntary .
In the event Stanberry terminates his employment of his own
volition prior to the end of the Term of this Agreement, except for
a termination for Good Reason as specifically defined in Section
4.6 below, such termination shall constitute a voluntary
termination and in such event the Company’s only obligation
to Stanberry shall be to make Base Salary payments provided for in
this Agreement through the date of such voluntary termination.
Stanberry understands and agrees that in the event of termination
of employment pursuant to this Section 4.5: (a) any rights and
benefits Stanberry may have under the employee benefit plans and
programs of the Company or its subsidiaries in which he is a
participant shall be determined in accordance with the terms and
provisions of such plans and programs; (b) all awards of restricted
stock, stock options, and any other benefits under any long-term
incentive plans shall be handled in accordance with the terms of
the relevant plan and agreements entered into between Stanberry and
the Company with respect to such awards; (c) the Company shall have
no obligation to pay any Annual Bonus, Incentive Target, or
Incentive Payment to Stanberry under the terms of this Agreement
and (d) the obligations of Stanberry under Sections 7 and 8 of this
Agreement shall remain of full force and effect.
4.6
Good Reason .
Stanberry may terminate this Agreement on ninety (90) days’
notice for Good Reason.
(a)
For
purposes of this Agreement, “Good Reason” shall
mean:
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(1)
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Without
Stanberry’s express written consent, the assignment to
Stanberry of any duties or responsibilities materially inconsistent
with the employment described in Section 1.1 above, or a material
change in the reporting responsibilities, titles, or offices as
described in Section 1.1, or any removal of Stanberry from, or any
failure to re-elect Stanberry to, any of such responsibilities or
positions, except in connection with the termination of
Stanberry’s employment for Due Cause, Permanent Disability,
retirement, or Death or except in connection with employment under
the Six-Month Rule set forth in Section 4.7(c)(1)
herein.
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(2)
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A
material reduction in Stanberry’s Base Salary;
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(3)
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Failure
of the Company to obtain the assumption of, or the agreement to
perform, this Agreement by any successor as defined in Section 9.3
hereof; or
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(4)
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The
Company requiring Stanberry to be based anywhere other than Polk
County, Iowa, or a county contiguous thereto,
except
for required travel for Company business to an extent substantially
consistent with Stanberry’s duties as described under Section
1.1, or in the event Stanberry consents to any relocation, the
failure by the Company to pay (or reimburse Stanberry) for all
reasonable moving and relocation expenses incurred by Stanberry
relating to a change of Stanberry’s principal residence in
connection with such relocation.
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(b)
Good
Reason Severance Payment:
In
the event Stanberry appropriately terminates his employment
and this Agreement for Good Reason (after having giving notice
to the Board of the “Good Reason” and allowing the
Board at least a 30 day period to cure the Good Reason),
Stanberry shall have no further obligations of any kind under
or arising out of the Agreement (except for the
obligations
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