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Exhibit 10.26
EMPLOYMENT AGREEMENT
AGREEMENT
entered into as of this 23rd day of May, 2008, by and between
WEST BANCORPORATION, INC., an Iowa corporation (the
“Company”), and BRAD L. WINTERBOTTOM
(“Winterbottom”), to be effective as of the date
stated above (“Effective Date”).
WITNESSETH:
WHEREAS,
Winterbottom has been employed as the Company’s
Executive Vice President, as West Bank’s Director and
President; and as Director of WB Capital Management Inc.;
and
WHEREAS,
the Company wishes that Winterbottom continue such employment
pursuant to the terms and conditions hereof, and in order to
induce Winterbottom 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,
Winterbottom is willing to continue his employment as
described above under the terms hereof and to enter into the
Agreement;
WHEREAS,
Winterbottom desires that his current Employment Agreement
dated July 11, 1997, as amended, be replaced and superseded in
its entirety with this 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 Winterbottom
shall serve as Executive Vice-President of the Company,
Director and President of West Bank, and Director of WB
Capital Management Inc. Winterbottom shall report to the Chief
Executive Officer of the Company. He shall perform the duties
ordinarily expected of the positions that he is assigned.
Winterbottom shall have such other responsibilities consistent
with the status, titles, and reporting requirements set forth
herein as are appropriate to said position, subject to change
from time to time by the Chief Executive Officer or the Board
of Directors of the Company or West Bank.
1.2
During
the course of his employment, Winterbottom agrees to devote
his full time and attention to the business affairs of the
Company and West Bank.
2.
Term .
Subject
to the terms and conditions hereof, the Company agrees to
employ, and Winterbottom 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 Winterbottom a base salary during the Term of
this Agreement at the minimum annual rate of Two-hundred ten
thousand Dollars ($210,000) (“Base Salary”), payable in
accordance with the standard payroll practices of the Company. It
is understood that the Base Salary is to be Winterbottom’s
minimum annual compensation during the Term. Winterbottom’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, Winterbottom 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 Winterbottom 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
Winterbottom as a participant, if a plan is adopted by the
Company.
3.4
Vacation. Winterbottom
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, Winterbottom 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 Winterbottom in accordance with
Company’s expense reimbursement policies for all reasonable,
ordinary, and necessary business expenses incurred by Winterbottom
while performing duties on behalf of the Company. In addition, the
Company shall pay Winterbottom’s monthly dues at one local
country club or one other similar club, and expenses related to
Winterbottom’s use of such club for matters related to the
Company’s business.
3.6
Employee Benefits. Winterbottom
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 Winterbottom 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 Winterbottom 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 Winterbottom 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 Winterbottom 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
Winterbottom the maximum insurance coverage provided any other
employee or director of the Company. The Company agrees to continue
Winterbottom’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 Winterbottom’s termination of
employment.
4.
Consequences of Termination of Employment and/or Change of
Control .
4.1
Death .
In the event of Winterbottom’s death during the Term of this
Agreement, this Agreement shall terminate, and all obligations to
Winterbottom shall cease as of the date of death except that, (a)
within ten (10) business days of termination, the Company shall pay
to Winterbottom’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 Winterbottom’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 Winterbottom under the benefit
plans and programs of the Company in which Winterbottom 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
Winterbottom and the Company with respect to such
awards.
Winterbottom
may designate a beneficiary by filing a written designation
with the head of personnel of the Company. Winterbottom may
revoke or modify the designation at any time by filing a new
designation. However, designations will only be effective if
signed by Winterbottom and received by the Company during
Winterbottom’s lifetime. Winterbottom’s
beneficiary designation shall be deemed automatically revoked
if the beneficiary predeceases Winterbottom, or if
Winterbottom names a spouse as beneficiary and the marriage is
subsequently dissolved. If Winterbottom dies without a valid
beneficiary designation, all payments shall be made to
Winterbottom’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 Winterbottom 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
Winterbottom shall cease except as provided below. Permanent
Disability shall be determined in one of two ways: (1) Winterbottom
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 Winterbottom shall cease
except that for a period of twelve (12) months, the Company shall
supplement Winterbottom’s Long-Term Disability payments to
the extent necessary for the Long-Term Disability payments plus the
supplemental payments to equal Winterbottom’s Base Pay as
defined in Section 3.1 herein; (2) alternatively, if Winterbottom
becomes permanently incapacitated and such incapacitation is
certified by a physician chosen by the Company and reasonably
acceptable to Winterbottom (if he is then able to exercise sound
judgment), and Winterbottom shall therefore be unable to perform
his normal duties hereunder, then the employment of Winterbottom
hereunder and this Agreement may be terminated by Winterbottom or
the Company upon thirty (30) days’ written notice to the
other party following such certification. Should Winterbottom not
acquiesce (or should he be unable to acquiesce) in the selection of
the certifying doctor, a doctor chosen by Winterbottom (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 Winterbottom,
at such times as Base Salary provided for in Section 3.1 of this
Agreement would normally be paid, Winterbottom’s then-current
Base Salary for a period of twelve (12) months. Under either
determination of Permanent Disability, Winterbottom shall be paid
Seventy-Five percent (75%) of the amount of his 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 Winterbottom may have under the employee
benefit plans and programs of the Company in which
Winterbottom 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 Winterbottom and the
Company with respect to such awards.
4.3
Due Cause .
The Company may terminate Winterbottom’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, Winterbottom shall
continue to receive Base Salary payments provided for in this
Agreement only through the date of such termination for Due Cause,
and Winterbottom shall be entitled to no further compensation under
this Agreement, except that any rights and benefits Winterbottom
may have under the employee benefit plans and programs of the
Company or its subsidiaries in which Winterbottom is a participant
shall be determined in accordance with the terms and provisions of
such plans and programs. Winterbottom 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 Winterbottom and the Company
with respect to such awards; and (b) the Company shall have no
obligation to pay any Annual Bonus to Winterbottom under the terms
of this Agreement; but (c) the obligations of Winterbottom 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 Winterbottom 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 Winterbottom by the Board that
specifically identifies the manner in which Winterbottom has
not substantially performed his duties; (ii) willful
misconduct by Winterbottom 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 Winterbottom shall be
considered “willful” unless it is done, or omitted
to be done, by Winterbottom in bad faith and without
reasonable belief that Winterbottom’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
Winterbottom in good faith and in the best interests of the
Company.
4.4
Without Cause .
The other provisions of this Agreement notwithstanding, the Company
may terminate Winterbottom’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
Winterbottom’s employment and this Agreement, Winterbottom
shall have no further obligations of any kind under or arising out
of the Agreement (except for the obligations of Winterbottom under
Sections 7 and 8 of this Agreement), and the Company shall be
obligated to promptly pay Winterbottom only the following
“Severance Payment”: Three times Winterbottom’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, Winterbottom would otherwise be
entitled to a Change of Control Benefit under Section 4.7 of this
Agreement, Winterbottom 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
Winterbottom family health coverage under COBRA for one year after
Winterbottom ceases employment by the Company.
Winterbottom
agrees that the payments described in this Section 4.4 shall
be full and adequate compensation to Winterbottom for all
damages Winterbottom 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, Winterbottom 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 Winterbottom may have
under the employee benefit plans and programs of the Company
or its subsidiaries in which Winterbottom 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 Winterbottom and the Company with respect to such
awards.
4.5
Employee Voluntary .
In the event Winterbottom 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 Winterbottom shall be to make Base Salary payments provided for
in this Agreement through the date of such voluntary termination.
Winterbottom understands and agrees that in the event of
termination of employment pursuant to this Section 4.5: (a) any
rights and benefits Winterbottom 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
Winterbottom 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 Winterbottom under the terms of
this Agreement and (d) the obligations of Winterbottom under
Sections 7 and 8 of this Agreement shall remain of full force and
effect.
4.6
Good Reason .
Winterbottom 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
Winterbottom’s express written consent, the assignment to
Winterbottom 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 Winterbottom
from, or any failure to re-elect Winterbottom to, any of such
responsibilities or positions, except in connection with the
termination of Winterbottom’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 Winterbottom’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 Winterbottom 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 Winterbottom’s duties as described under
Section 1.1, or in the event Winterbottom consents to any
relocation, the failure by the Company to pay (or reimburse
Winterbottom) for all reasonable moving and relocation expenses
incurred by Winterbottom relating to a change of
Winterbottom’s principal residence in connection with such
relocation.
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(b)
Good
Reason Severance Payment:
In
the event Winterbottom 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),
Winterbottom shall have no further obligations of any kind
under or arising out of the Agreement (except for the
obligations of Winterbottom under Sections 7 and 8 of this
Agreement), and the Company shall be obligated to pay
Winterbottom an amount equal to his Base Salary plus $100,000
per year for the remainder of the then-existing Term of this
Agreement, but no less than a total of one year of Base Salary
plus $100,000 (“Good Reason Severance
Payment”)—provided, however, that in the event
that as a result of such termination of employment by
Winterbottom for Good Reason, Winterbottom would otherwise be
entitled to a Change of Control Benefit u
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