SEPARATION AGREEMENT AND RELEASE
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EXHIBIT
10.24
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West
Bancorporation, Inc. (“Employer”) and Xxxxxx X. Xxxxxxxxx (“Employee”) hereby
enter into this Agreement as follows:
1.
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Employee’s
employment relationship with Employer ended effective July 15, 2009,
(“Effective Date”) pursuant to Employee’s resignation which was provided
and accepted in lieu of termination. Employee’s salary, less applicable
withholdings and deductions, has been or will be paid through the
Effective Date.
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2.
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In
exchange for, and contingent upon, Employee’s resignation and the other
terms and conditions set forth
herein:
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a)
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Employer
acknowledges and agrees Employee’s resignation was involuntary in
nature.
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b)
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Employer
agrees to provide Employee notice of Employee’s rights under and to comply
with the Consolidated Omnibus Budget Reconciliation Act
(“COBRA”). Employee shall receive the maximum COBRA premium
assistance allowed under Title III of the American Recovery and
Reinvestment Act of 2009 (Pub. L.
111-5).
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c)
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Employer
agrees to pay Employee a lump sum in the gross amount of $38,942.27 (324
hours, 40.5 days) minus applicable withholdings and deductions in full and
final satisfaction of Employee’s accrued and unused
vacation.
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d)
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Employer
agrees not to protest any application Employee makes for unemployment
compensation benefits, with the understanding the determination of
Employee’s qualification for such benefits is ultimately within the
discretion of Iowa Workforce
Development.
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e)
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Employer
shall pay all of Employee’s reasonable and ordinary unclaimed business
expenses that accrued on or prior to July 15,
2009.
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f)
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If
at any time before July 15, 2012, the Department of the Treasury’s TARP
regulations, any controlling statute, or any other controlling regulations
are interpreted or changed so that Employer may in the future pay Employee
all or any part of a Termination Without Cause Severance Payment (as
defined in the May 23, 2008, Employment Agreement between Employee and
Employer (the “Employment Agreement”)) due to the resignation described
above, then Employer shall pay Employee all or the permitted portion of
the Severance Payment. This section shall not be interpreted as
creating a deferral, a future entitlement, or a future re-instatement of a
currently prohibited payment. Rather, the intent of this
section is to allow a severance payment if future controlling regulatory
authority retroactively authorizes the payment of a currently prohibited
payment. This provision is subject to the condition stated in
paragraph 12 below.
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g)
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Employer
shall at its expense provide for Employee’s coverage under such directors’
and officers’ liability insurance policies as shall from time to time be
in effect for Employer, officers, and employees for not less than six (6)
years following the Effective Date.
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h)
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Employee
shall retain all rights existing through the Effective Date relating to
the pension, profit sharing, and 401(k) plans in which Employee has
participated prior to the Effective
Date.
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3.
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Except
for ongoing obligations pursuant to the Employment Agreement, Employee, on
behalf of Employee and for anyone else who may make a claim on behalf of
Employee, knowingly and voluntarily releases and discharges Employer, and
any subsidiary companies, affiliates, operating groups, and its and their
officers, directors, employees, and agents (“Released Parties”) from all
causes of action, lawsuits, liabilities, rights or claims Employee may
have against the Released Parties as of the date Employee signs this
Agreement, whether now known or unknown, including, without limitation,
all liabilities, rights or claims arising from or in connection with
Employee’s employment with Employer and Employee’s separation from
Employer, including but not limited to all rights, claims, and causes of
action under the following statutes and court-made legal
principles:
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a)
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The
Employee Retirement Income Security Act of 1974, as
amended;
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b)
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Title
VII of the Civil Rights Act of 1964, as
amended;
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c)
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Civil
Rights Act of 1991;
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d)
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The
Americans with Disabilities Act;
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e)
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Any
applicable state Civil Rights acts and any other applicable Civil Rights
laws or regulations;
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f)
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Any
applicable municipal civil rights
ordinance;
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g)
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The
Family and Medical Leave Act and any applicable state family and medical
leave statute;
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h)
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Age
Discrimination in Employment act of 1967, as amended by the Older Workers’
Benefit Protection Act;
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i)
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Any
applicable wage payment laws;
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j)
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Any
express or implied contract right, except for any claim Employee may have
to a Severance Payment under the termination Without Cause provision set
forth in Section 4.4 of the Employment Agreement and except rights
identified in this Agreement including, without limitation, the COBRA
benefits, insurance coverage, indemnity, and other rights provided
herein;
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k)
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Any
cause of action alleging defamation, invasion of privacy, breach of the
covenant of good faith and fair dealing, wrongful discharge in violation
of public policy, intentional infliction of emotional distress, or
promissory estoppel; and
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l)
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Any
other common law or statutory claim, except for any claim Employee might
make for unemployment benefits during any applicable period for which he
is not receiving Severance
Payments.
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4.
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Except
for ongoing obligations pursuant to the Employment Agreement, Employer
hereby releases and discharges Employee from all causes of action,
lawsuits, liabilities, rights or claims Employer may have against Employee
as of the date Employee signs this Agreement, whether now known or
unknown, including all liabilities, rights, or claims arising from or in
connection with Employee’s employment by Employer except any liability,
right, or claim for which indemnification would not be available to
Employee under Section 3.9 of the Employment
Agreement. Employer agrees to indemnify and save Employee
harmless from any and all claims, liabilities, causes of action, or
expenses of any nature incurred by Employee as a result of the employment
of Employee or the actions of Employee relating to employment conducted
prior to the Effective Date for the benefit of Employer to the fullest
extent permitted by the Articles of Incorporation and Bylaws of Employer
and to the fullest extent permitted by
law.
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5.
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By
entering into this Agreement, neither Employer nor Employee claim or admit
to any liability or wrongdoing, and each denies that it has any liability
to the other or has acted wrongly toward the
other.
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6.
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Employee
has twenty-one (21) days from the date of receiving this document to
consider whether or not to execute this Agreement. In the event
of such execution, Employee has a further period of seven (7) days from
the date of execution in which to revoke such execution, in which case
this Agreement shall become null and void and neither party shall have any
obligation under this Agreement. This Agreement shall not
become effective or enforceable prior to the expiration of such seven (7)
day period.
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7.
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Notwithstanding
any other provision of this Agreement, Employee will retain all rights to
vested benefits, if any, under the Employer’s retirement plan, in
accordance with the terms of that
plan.
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8.
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Employer
and Employee agree not to disclose the terms of this Agreement to any
person or entity for any reason at any time without the prior written
consent of the other, except for disclosures to Employee’s immediate
family, to the parties’ attorneys, for tax purposes to the parties’
accountants or tax consultants, to state and federal authorities, or as
required by law.
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9.
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Employer
agrees to respond to reference inquiries concerning Employee’s employment
in accordance with its policy of providing only dates of employment and
title of last position held, and confirming the fact that Employee
resigned his employment.
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10.
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Employee
agrees not to make any disparaging private or public statements about
Employer or its employees, officers or directors. Employer
agrees not to make any disparaging private or public statements about
Employee.
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11.
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Employee
agrees to cooperate with Employer in the truthful and honest prosecution
and/or defense of any claim in which Employer may have an interest (with
Employee having the right of reimbursement for reasonable expenses
actually incurred) which may include, without limitation, being available
to participate in any proceeding involving any of the Released Parties,
permitting interviews with representatives of Employer, appearing for
depositions and trial testimony, and producing and/or providing any
documents or names of other persons with relevant information in his
possession or control arising out of his employment in a reasonable time,
place and manner. In addition to the reimbursement of
reasonable expenses, Employer will pay to Employee per diem compensation
at the rate of $250 per hour.
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12.
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Employee
and Employer acknowledge and re-affirm their ongoing obligations and
rights under the Employment Agreement except to the extent that Section
7.5 is specifically modified as follows. Employer hereby waives
the restriction stated in Section 7.5 of the Employment Agreement that
Employee “shall not directly or indirectly engage in any other business in
which the Company engages during the Term of the
Agreement.” Employer specifically acknowledges and agrees that
Employee may, at any time after the Effective Date, engage in the business
of banking, the business of asset management, or any other business in
which Employer has engaged at any time during the term of the Employment
Agreement, or provide services to any person or entity engaged in any such
business. If Employee takes advantage of this waiver to work
for a competitor of Employer or any of its subsidiaries, then no payment
shall be made to Employee pursuant to paragraph 2(f)
above. Employer further specifically acknowledges that engaging
in the business of banking, asset management, or any other business in
which Employer has engaged during the term of the Employment Agreement
will not, absent a specific prohibited act or omission, constitute a
violation by Employee of the confidentiality, non-disclosure,
non-solicitation, tampering, or intellectual property provisions of
Section 7 of the Employment
Agreement.
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13.
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Employee
agrees that should there be a violation or attempted or threatened
violation of this Agreement, Employer or its successor may apply for and
obtain an injunction to restrain such violation or attempted or threatened
violation, to which injunction Employer or its successor shall be entitled
as a matter of right, Employee conceding that such cannot reasonably or
adequately be compensated in damages in an action at law, and that the
right to said injunction is necessary for the protection and preservation
of Employer’s or its successor’s rights and to prevent irreparable damages
to Employer or its successor. Such injunctive relief shall be
in addition to such other rights and remedies as Employer or its successor
may have against Employee arising from any breach hereof on Employee’s
part.
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14.
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The
terms of this Agreement are separable so that if any term or provision is
invalid or unenforceable, that term will be modified to make it valid or
enforceable or deleted if incapable of being modified and the rest of this
Agreement will remain in full force and effect. This Agreement
shall be controlled by the laws of the State of
Iowa.
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Intending
to be bound according to its terms, Employee and Employer have signed this
Agreement as of the dates stated below.
EMPLOYEE
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EMPLOYER
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/s/
Xxxxxx X.
Xxxxxxxxx
Xxxxxx
X. Xxxxxxxxx
Date: September
4, 2009
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West
Bancorporation, Inc.
By:
/s/ Xxxx X.
Xxxxxx
Xxxx
X. Xxxxxx
Chairman
Date: September
18, 2009
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