EXHIBIT 10.4


 


FIRST AMENDMENT


TO THE

METABANK EMPLOYMENT AGREEMENT

WITH


J. TYLER HAAHR


 

















 


THIS AMENDMENT (the “Amendment”) is entered into on the
date set forth on the signature page hereof by and between MetaBank (the “Company”) and J. Tyler
Haahr  (the “Employee”).


 


RECITALS


 


WHEREAS, the Company and the Employee previously
entered into an employment agreement dated January 27, 1997 (the “Employment
Agreement”);


 


WHEREAS, the Company and the Employee desire to
amend the Employment Agreement to comply with Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”); and


 


WHEREAS, pursuant to Section 13 of the
Employment Agreement, the Employment Agreement may be amended by written
agreement of the parties thereto;


 


NOW, THEREFORE, the parties hereby agree to amend the
Employment Agreement, generally effective January 1, 2008, as follows:


 


Section 2(b) is amended to read
as follows:


 


(b) Discretionary
Bonuses.  The Employee shall be
entitled to participate in an equitable manner with all other executive
officers of the Bank in discretionary bonuses as authorized and declared by the
Board of Directors of the Bank to its executive employees.  Any such discretionary bonus shall be payable
to the Employee at the time bonuses are paid to executive officers in
accordance with the Bank’s policies and practices; provided,
however, that any such bonus shall be paid no later than March 15 of the
year following the year in which the bonus is earned and vested.  No other compensation provided for in this
Agreement shall be deemed a substitute for the Employee’s right to participate
in such bonuses when and as declared by the Board of Directors.


 


Section 2(c) is amended to read
as follows:


 


(c) Expenses.  During the term of his employment hereunder,
the Employee shall be entitled to receive prompt reimbursement for all
reasonable expenses he incurs (in accordance with policies and procedures at
least as favorable to the Employee as those presently applicable to the senior
executive officers of the Bank) in performing services hereunder, provided that the Employee properly accounts for such
expenses in accordance with Bank policy. 
Such expense reimbursements shall be paid no later than the end of the
Employee’s taxable year following the taxable year in which the Employee incurs
the expenses.  The amount of expenses
eligible for reimbursement during a taxable year may not affect the expenses
eligible for reimbursement in any other taxable year, and the Employee’s right
to an expense reimbursement may not be liquidated or exchanged for another
benefit.


 


Section 6(a) is amended so the
first paragraph thereof reads as follows:


 


(a) The
Board of Directors may terminate the Employee’s employment at any time, but any
termination by the Bank’s Board of Directors, other than termination for cause,
shall not prejudice the Employee’s right to compensation or other benefits
under the Agreement.  If the employment
of the Employee is involuntarily terminated, other than for “cause” as provided
in this Section 6(a) or pursuant to any of Sections 6(d) through
6(g), or by reason of death or disability as provided in Sections 6(c) or
7, the Employee shall be entitled to receive:


 


(i) his
then-applicable salary for the then-remaining term of the Agreement as
calculated in accordance with Section 4 hereof, payable in installments
not less frequently than biweekly, in 


 


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accordance
with the Bank’s regular payroll practices and procedures, subject to the
customary withholding tax and other employee taxes as required with respect to
compensation paid by a corporation to an employee, provided
that if the Employee is a “specified employee” (as such term is defined in Code
Section 409A and the regulations or other guidance in effect thereunder)
at the time of his employment termination and his employment terminates under
circumstances that require a distribution delay under Code Section 409A,
the commencement of biweekly installments of the Employee’s continued salary
payments shall be delayed for six months and the installments that otherwise
would have been paid during that six-month period shall be paid in a lump sum
on the six-month anniversary of the Employee’s employment termination date (or,
if earlier, as soon as administratively feasible after his death); and


 


(ii) health
insurance benefits as maintained by the Bank for the benefit of its senior
executive employees or its employees generally over the then-remaining term of
the Agreement as calculated in accordance with Section 4 hereof, provided that if the duration of such health insurance
benefits extends beyond the end of the applicable continuation coverage period
under the Consolidated Omnibus Budget Reconciliation Act (COBRA), (A) the
amount of benefits provided during one calendar year shall not affect the
amount of benefits provided during a subsequent calendar year (except with
respect to health plan maximums), (B) the benefits may not be exchanged or
substituted for other forms of compensation to the Employee, and (C) any
reimbursement or payment under the benefit arrangement will be paid in
accordance with applicable plan terms and no later than the last day of the
Employee’s taxable year following the taxable year in which he incurred the
expense giving rise to such reimbursement or payment.


 


Section 6(h) is amended to read
as follows:


 


(h)In
the event the Bank purports to terminate the Employee for cause, but it is
determined by a court of competent jurisdiction or by an arbitrator pursuant to
Section 17 that cause did not exist for such termination, or if in any
event it is determined by any such court or arbitrator that the Bank has failed
to make timely payment of any amounts owed to the Employee under this
Agreement, the Employee shall be entitled to reimbursement for all reasonable
costs, including attorneys’ fees, incurred in challenging such termination or
collecting such amounts; provided,
however, that (i) the Employee shall have no right to cost reimbursements
until the court or arbitrator enters a final and binding opinion that cause did
not exist for the Employee’s termination or that the Bank has failed to pay
amounts due to the Employee under this Agreement, and (ii) cost
reimbursements will be paid no later than March 15 of the year following
the year in which the court or arbitrator enters its final and binding
opinion.  Such reimbursement shall be in
addition to all rights to which the Employee is otherwise entitled under this
Agreement.


 


Section 9(c) is amended so the
last sentence thereof reads as follows:


 


In
the event that the Advisory Firm, based on controlling precedent or other
substantial authority, determines that an Underpayment has occurred, any such
Underpayment shall be promptly paid by the Bank to or for the benefit of the
Employee together with interest at the applicable federal rate provided for in Section 7872(f)(2) of
the Code, provided that such Underpayment and
interest shall be paid no later than two and a half months after the date on
which the Advisory Firm informs the Bank of its determination that an
Underpayment has occurred.


 


A new Section 18 is added to the
Employment Agreement to read as follows:


 


18.
Code Section 409A.  It is
intended that any income or payments to the Employee provided under this
Agreement will not be subject to the additional tax and interest under Code Section 409A
(the “Section 409A Tax”).  The
provisions of the Agreement will be construed in favor of complying with any 


 


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applicable
requirements of Code Section 409A as necessary to prevent the imposition
of a Section 409A Tax.  The Bank and
the Employee agree to amend the Agreement (retroactively, if necessary) to
comply with Code Section 409A, including amendment to enable the Employee
to prevent the imposition of, or to reduce the amount of, any Section 409A
Tax.  The Bank and the Employee shall
reasonably cooperate to give full effect to this provision and the consent to
any amendment described in the preceding sentence shall not be unreasonably
withheld by either party.  The parties
agree that neither party has (a) an obligation to bring any potential Section 409A
Tax to the attention of the other party or (b) any liability for any Section 409A
Tax or any other reporting or withholding obligation to the other party.


 


In all other respects, the Employment
Agreement shall remain unchanged and in full force and effect.


 


IN WITNESS WHEREOF, this Amendment has been executed and delivered by the parties hereto
this 28th day of January, 2008.


 


	
   

  	
  METABANK 

  
	
   

  	
   

  
	
   

  	
  /s/
  E. Wayne Cooley

  
	
   

  	
  E.
  Wayne Cooley

  
	
   

  	
  Chairman,
  Compensation Committee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMPLOYEE

  
	
   

  	
   

  
	
   

  	
  /s/ J. Tyler Haahr

  
	
   

  	
  J. Tyler Haahr

  



 


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