Exhibit 10.1
EMPLOYMENT
AGREEMENT
BETWEEN
TEAM FINANCIAL,
INC.
AND
ROBERT J.
WEATHERBIE
TABLE OF CONTENTS
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Section
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Page No.
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1.
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Term of Agreement and Definitions
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1
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2.
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Entire Agreement
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2
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3.
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Validity
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2
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4.
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Paragraphs and other headings
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2
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5.
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Successors
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2
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6.
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Designation of beneficiaries
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3
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7.
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Duties
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3
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8.
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Salary, Bonus, Benefits, Additional
Compensation
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3
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9.
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Protection of Company’s
Interests
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5
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10.
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Termination by Company
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5
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11.
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Termination by Executive
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8
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12.
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Consequences of Breach
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10
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13.
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Mitigation and Offset
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11
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14.
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Tax “Gross-Up” Provision
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11
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15.
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Remedies
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11
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16.
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Binding Agreement
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11
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17.
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Arbitration
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11
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18.
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Amendment; Waiver
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11
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19.
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Governing Law
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12
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20.
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Notices
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12
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Signatures
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12
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EMPLOYMENT
AGREEMENT
BETWEEN
TEAM FINANCIAL,
INC.
AND
ROBERT J.
WEATHERBIE
This Agreement is made this 1st day
of January, 2007, between Team Financial, Inc., a Kansas
corporation ( “Company” ) and Robert J.
Weatherbie ( “Executive” ).
A.
Executive is employed as Chairman
and Chief Executive Officer, has rendered valuable services to
Company and has acquired an extensive background in and knowledge
of Company’s business.
B.
Company desires to continue the
services of Executive and Executive desires to continue to serve
Company as Chairman and Chief Executive Officer.
In consideration of the foregoing
recitals and the agreements set forth herein, Company and Executive
agree as follows:
1.
Term of Agreement and
Definitions:
1.0
Term of Agreement:
Company shall employ
Executive and Executive accepts such employment for a period
beginning on the date of this Agreement and ending the 31st day of
December, 2009, subject to the terms and condition set forth
herein, unless earlier termination of the agreement shall occur in
accordance with the subsequent provisions set forth
herein.
1.1
Automatic Extension of Agreement
Term: Not
withstanding the foregoing, if this Agreement shall not have been
terminated in accordance with the provisions herein on or by the
31st day of December, 2009; the term of this Agreement shall be
extended automatically without further action by either party such
that at every moment of time thereafter, the term shall be one
year.
Provided, however, during such
period of automatic extension of the term, this Agreement may be
terminated in accordance with the termination provisions of this
Agreement as set forth in Sections 10 and 11.
1.2
Definitions:
The following definitions shall be
used in the interpretation of this Agreement.
1.2.1
Employment on an active full time
basis means the
Executive’s professional services shall be substantially
devoted to Company. Although prior approval by the Company of
Executive’s employment by third parties is not required, the
Company shall have the right to review any employment of Executive
by any entity and shall have the right to require Executive to
abandon any unsuitable employment as may be determined by Company
or any activities competitive with Company. The term Aactive full
time basis includes the requirement that Executive refrain from any
activities which interfere with Executive’s Company
duties.
1.2.2
Year, Month, Week and
Day, unless otherwise
provided in this agreement, the word “year” shall be
construed to mean a calendar year of 365 days, the word
“month” shall be construed to mean a calendar month,
the word “week” shall be construed to mean a calendar
week of 7 days, and the word “day” shall be construed
to mean a period of 24 hours running from midnight to
midnight.
1.2.3
Annual Base Salary
is the sum of money regularly paid
by Company to Executive each year of the term of this Agreement
pursuant to provisions of Section 8.0 of this Agreement.
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1.2.4
Customary payroll
practices are those
policies and procedures routinely followed by the Company
concerning the time and method of payment of compensation to its
employees as may from time to time be adopted by the Company during
course of this Agreement.
1.2.5
Company policies
are those written policies adopted
by the Company and/or customary practices routinely followed by the
Company which may from time to time be adopted by the Company
during the course of the Agreement. The parties acknowledge
the Company may from time to time reasonably enact new policies or
alter existing policies.
1.2.6
Organization
as used herein shall be broadly
defined to include any business, civic or community group or
entity.
1.2.7
Willful Misconduct
is any act performed with a designed
purpose or intent on the part of a person to do wrong.
1.2.8
Gross misappropriation of
funds shall be any
misappropriation of company funds by any means which is intentional
and not of an inconsequential nature or amount.
1.2.9
Disability
shall mean either (i) that the
Executive is incapable of engaging in any substantial gainful
occupation by reason of any medically determinable physical or
mental impairment which can be expected to result in death or to
last for a continuous period of not less than twelve (12) months,
or (ii) that the Executive is, by reason of any medically
determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a
continuous period of not less than twelve (12) months,
receiving income replacement benefits for a period of not less than
three(3) months under an accident and health plan covering
employees of the company, or as hereinafter modified pursuant to
Section 409(a) of the Internal Revenue Code.
2.
Entire Agreement
2.0
With respect to the matters
specified herein, this Agreement contains the entire agreement
between the parties and supersedes all prior oral and written
agreements, understandings and commitments between the
parties. This Agreement shall not affect the provisions of
any other compensation, retirement or other benefit programs of
Company to which Executive is a party or of which he is a
beneficiary.
3.
Validity
3.0
In the event that any provision of
this Agreement is held to be invalid, void or unenforceable, the
same shall not affect, in any respect whatsoever, the validity of
any other provision of the Agreement.
4.
Paragraphs and other
headings
4.0
Paragraphs and other headings
contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement.
5.
Successors
5.0
The rights and duties of a party
hereunder shall not be assignable by that party; provided, however,
that this Agreement shall be binding upon and inure to the benefit
of any successor of Company, and any such successor shall be deemed
substituted for Company under the terms of this Agreement.
The term Asuccessor@ as used herein shall include any person, firm,
corporation or other business entity which at any time, by merger,
purchase or otherwise, acquires all or substantially all of the
assets or business of company.
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6.
Designation of
beneficiaries
6.0
If Executive should die during the
term of this Agreement, all such sums due to Executive hereunder
shall be paid as designated by Executive on the attached
Beneficiary Designation Form.
6.1
The spouse of the Executive shall
join in any designation of a beneficiary other than the
spouse.
6.2
If Executive wholly fails to
designate a beneficiary as provided for in this paragraph, or if
the Executive’s spouse at the time of his death shall not
have joined in the designation of a beneficiary, then the sums due
Executive shall be paid to his estate.
7.
Duties
7.0
Company employs Executive upon an
active full-time basis, as Chairman of the Board of Directors and
Chief Executive Officer subject to the order and direction of the
Board of Directors ( “Board” ) of
Company.
7.1
During the term of this Agreement
Executive shall devote substantially all of his time, attention,
and best efforts to the business of Company and its
subsidiaries. Executive shall perform such duties and shall
exercise such power and authority as delegated by the Board from
time to time provided that such duties are commensurate with the
positions of Chairman of the Board and Chief Executive
Officer. Executive may engage in other non-business
activities such as charitable, educational, religious and similar
types of activities so long as such activities do not prevent the
performance of Executive’s duties herein or conflict in any
material way with the business of Company. Notwithstanding
the above, Executive shall be permitted to serve as a Director or
Trustee of other organizations, in accordance with the policies of
Company.
7.2
The duties of Chairman of the Board
and Chief Executive Officer shall be defined using a written job
definition, developed by an executive compensation committee
appointed by the Board of Directors. The Board shall consult
with Executive in the development of the written job
definition. Executive and said written job definition shall
be subject to any systematic evaluation system(s) that the Board
may from time to time employ.
7.3
Executive’s duties shall be
performed principally at Company’s headquarters located in
Paola, Kansas. During the term of the Agreement, it is
understood that Company expects to maintain its principal place of
business in Paola, Kansas. If the requirements of Company, as
determined by the Board, make it desirable to relocate the
principal offices of Company to another location during any period
of employment, Executive will be consulted in advance of any such
relocation. Unless Executive otherwise consents, the
principal place of Executive’s employment shall be within a
50 mile radius of Paola, Kansas.
8.
Salary, Bonus, Benefits,
Additional Compensation
8.0
Annual Base
Salary.
Executive shall receive an annual
base salary of $286,125.00 payable according to the customary
payroll practices of Company and subject to all required
withholding taxes. The compensation committee of Board, in
its discretion, may increase this annual base salary upon relevant
circumstances. Executive will be reviewed at least
annually. At least every two years compensation committee
will review Executive’s annual base salary for
competitiveness and appropriateness in the industry. Any
increase in annual base salary awarded to the Executive by Company,
shall constitute a new annual base salary for the purpose of this
Agreement. To be effective such changes in the annual base salary
shall be in writing signed by the Company.
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8.1
Bonus.
8.1.1
Standard Company
Bonuses. Executive
shall be eligible to receive, in addition to his salary, any
contributions or sums specified as additional compensation through
any established plan or policy of Company which is available to
senior executives as compensation over and above established
salaries.
8.1.2
Annual Executive
Bonus. In
addition, Executive shall be entitled to receive a yearly annual
bonus. The amount of such bonus shall be based upon criteria
established by the compensation committee of Board and may include
either or both stock and cash. Provided, however, such bonus
shall not exceed fifty percent (50%) of Executive’s annual
base salary in effect for the period for which the bonus is
granted. During the term of this Agreement, the yearly annual
bonus shall be paid not later than January 31 of the calendar year
following annual bonus year.
8.2
Benefits.
8.2.0
Executive shall be entitled to
receive all benefits generally made available to executives of
Company as may from time to time be in effect.
8.2.1
Executive shall be entitled, in
addition to life insurance coverage in effect for all employees, to
a life insurance policy in the amount of $240,000.00 all premiums
to be paid by Company.
8.2.2
Executive shall be entitled to
participate, during the term of the Agreement, under the terms and
conditions thereof, in any group life, medical, dental or other
health and welfare plans generally available to management
personnel of Company which may be in effect from time to time;
provided that nothing herein shall require the Company to establish
or maintain such plans.
8.2.3
Executive Expenses.
Executive shall be entitled to
reimbursement for business expenses. Executive shall be
expected to incur various business expenses customarily incurred by
persons holding like positions, including but not limited to
traveling, entertainment and similar expenses, all of which are to
be incurred by Executive for the benefit of Company.
Executive shall be subject to Company=s policies regarding the
reimbursement and non-reimbursement of said expense.
Executive acknowledges that Company policies do not necessarily
provide for the reimbursement of all expenses.
8.2.4
Special Executive
Allowance. Company
agrees to pay reasonable room, board, travel, and sponsored event
expenses of Executive’s spouse on three (3) business trips
per year of Executive’s choice.
8.2.5
Accounting.
Executive shall account to
Company for any reimbursement or payment of such expenses in such a
manner as Company practices may from time to time require.
Subject to Company’s policy regarding the payment of
reimbursable expenses, Company shall reimburse Executive for such
expenses from time to time, at Executive’s
request.
8.2.6
Executive shall be entitled to
reimbursement, not to exceed $5,000.00 for the term of the
agreement, for home office use, including, but not limited to, an
appropriate computer/modem installation, printer, desk, chair, and
such business related supplies as are used for Company’s
business.
8.2.7
Company shall indemnify and hold
Executive harmless for any legal fees and expenses incurred by
Executive in the performance of his duties as a result of civil or
criminal actions against him in accordance with the indemnification
provisions of the Articles of Incorporation and Bylaws of
Company.
8.2.8
During (i) the term of this
Agreement, (ii) the twelve month period following the termination
of this Agreement as a result of death, (iii) a two year period
following the termination of this Agreement as a result of
disability, (iv) a three year period following termination of this
Agreement by Executive for material breach or good cause, and (v) a
three year period following a termination of this Agreement by
Company without cause; Company shall pay to Executive, or his
estate if he be deceased, a sum as reimbursement for reasonable
out-of-pocket expenses incurred for third-party professional
financial and tax advice provided by a licensed professional of
Executive’s choice, or the choice of Executive=s
designated
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beneficiary, or in the absence of a
designated beneficiary his estate if he be deceased.
Provided, however, that in (i) above, the sum shall not exceed ten
percent (10%) of Executive’s annual base salary for that
year; (ii) above, the sum shall not exceed ten percent (10%) of
Executive’s annual base salary for that year; (iii), (iv) and
(v) above, the sum shall not exceed ten percent (10%), each year,
of Executive’s annual base salary at the time of
Executive’s disability or time of termination.
8.2.9
Executive shall be provided with a
personal automobile under arrangements equivalent to those
currently in effect with respect to other Company executives and of
equivalent size and features as presently driving.
8.3
Additional
Compensation .
Executive shall be eligible to
receive, in addition to his salary, any contributions or sums
specified for additional compensation through any established plan
or policy of Company which is available to senior executives as
compensation over and above established salaries, including but not
limited to stock options.
8.4
Tax Liability
.
Any tax liability which these
benefits create for Executive will be the sole responsibility of
Executive.
9.
Protection of Company’s
Interests
9.0
During the term of this Agreement
Executive shall not directly or indirectly engage in competition
with, and/or not own any interest in any business which competes
with, any business of Company; provided, however, that the
provisions of this Section 9 shall not prohibit his ownership of
not more than 5% of voting stock of any publicly held
corporation.
9.1
Except for actions taken in the
course of his employment hereunder, at no time shall Executive
divulge, furnish or make accessible to any person any information
of a confidential or proprietary nature obtained by him while in
the employ of Company. Upon termination of his employment by
Company, Executive shall return to Company all such information
which exists in writing or other physical form and all copies
thereof in his possession or under his control.
9.2
Company, its successors and assigns,
shall, in addition to Executive’s services, be entitled to
receive and own all of the results and proceeds of said services
(including, without limitation, literary material and other
intellectual property) produced or created during the term of
Executive’s employment hereunder. Executive will, at
the request of Company, execute such assignments, certificates or
other instruments as Company may from time to time deem necessary
or desirable to evidence, establish, maintain, protect, enforce or
defend its right or title to any such material.
10.
Termination by
Company
10.0
Company shall have the right to
terminate this Agreement under the following
circumstances:
(i)
Upon the death of
Executive;
(ii)
Upon the disability of
Executive;
(iii)
Upon material breach or
good cause ;
(iv)
Upon written notice by Company
without cause; and
(v)
Upon written notice by
Company, during the period of automatic extension of the term
of Company’s intention to have this Agreement expire in
one year.
10.1
If Executive dies before his employment with Company is otherwise
terminated, Executive’s designated beneficiary, or in the
absence of a designated beneficiary, the estate of the Executive,
will receive all sums due under the Split Dollar Agreement and
Deferred Compensation Agreement between Executive
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and TeamBank, N. A. then in existence. In
the event the total amount paid to the beneficiaries or the estate
of Executive is less than $