EXHIBIT 10.2
Form of Employment Agreement for
President and Chief Executive Officer with Home Federal Bancorp, Inc.
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of this _____ day of ________ 2004 by and between Home Federal Bancorp, Inc.
(the "Company"), and Xxxxxx X. Xxxxxxx (the "Employee"). References to the
"Savings Bank" mean Home Federal Bank.
WHEREAS, the Employee is currently serving as the President and Chief
Executive Officer of the Company;
WHEREAS, the Employee has made and will continue to make a major
contribution to the success of the Company in the position of President and
Chief Executive Officer;
WHEREAS, the Board of Directors of the Company (the "Board of
Directors") recognizes that the possibility of a change in control of the
Savings Bank or the Company may occur and that such possibility, and the
uncertainty and questions which may arise among management, may result in the
departure or distraction of key management to the detriment of the Company;
WHEREAS, the Board of Directors believes that it is in the best
interests of the Company and its stockholders to enter into this Agreement with
the Employee in order to assure continuity of management of the Company and its
subsidiaries; and
WHEREAS, the Board of Directors has approved and authorized the
execution of this Agreement with the Employee;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein, it is AGREED as follows:
1. Definitions.
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(a) "Change in Control" means (i) any "person," as such term
is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (other than the Company, any Consolidated
Subsidiaries (as hereinafter defined), any person (as hereinabove defined)
acting on behalf of the Company as underwriter pursuant to an offering who is
temporarily holding securities in connection with such offering, any trustee or
other fiduciary holding securities under an employee benefit plan of the
Company, or any corporation owned, directly or indirectly, by the stockholders
of the Company in substantially the same proportions as their ownership of stock
of the Company), is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing 25% or more of the combined voting power of the Company's then
outstanding securities; (ii) individuals who are members of the Board on the
Effective Date (the "Incumbent Board") cease for any reason to constitute at
least a majority thereof, provided that any person becoming a director
subsequent to
the Effective Date whose election was approved by a vote of at least
three-quarters of the directors comprising the Incumbent Board or whose
nomination for election by the Company's stockholders was approved by the
nominating committee serving under an Incumbent Board or who was appointed as a
result of a change at the direction of the Office of Thrift Supervision ("OTS")
or the Federal Deposit Insurance Corporation ("FDIC"), shall be considered a
member of the Incumbent Board; (iii) the stockholders of the Company approve a
merger or consolidation of the Company with any other corporation, other than
(1) a merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation or (2) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no
person (as herein above defined) acquires more than 25% of the combined voting
power of the Company's then outstanding securities; or (iv) the stockholders of
the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or substantially all
of the Company's assets (or any transaction having a similar effect); provided
that the term "Change in Control" shall not include an acquisition of securities
by an employee benefit plan of the Savings Bank or the Company or a change in
the composition of the Board at the direction of the OTS or the FDIC.
Notwithstanding the foregoing, a "Change in Control" shall not be deemed to have
occurred in the event of a conversion of the Company's mutual holding company to
stock form or in connection with any reorganization or action used to effect
such conversion.
(b) The term "Consolidated Subsidiaries" means any
subsidiary or subsidiaries of the Company (or its successors) that are part of
the affiliated group (as defined in Section 1504 of the Internal Revenue Code of
1986, as amended (the "Code"), without regard to subsection (b) thereof) that
includes the Company, including but not limited to the Savings Bank.
(c) The term "Date of Termination" means the date upon which
the Employee's employment with the Company ceases, as specified in a notice of
termination pursuant to Section 8 of this Agreement or the date a succession
becomes effective under Section 10.
(d) The term "Effective Date" means the date of this
Agreement.
(e) The term "Involuntary Termination" means the termination
of the employment of Employee (i) by the Company without the Employee's express
written consent; or (ii) by the Employee by reason of a material diminution of
or interference with his duties, responsibilities or benefits, including
(without limitation), if the termination of employment occurs within 30 days of
any of the following actions unless consented to in writing by the Employee: (1)
a requirement that the Employee be based at any place other than Nampa, Idaho,
or within a radius of 35 miles from the location of the
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Company's administrative offices as of the Effective Date, except for reasonable
travel on Company business; (2) a material demotion of the Employee; (3) a
material reduction in the number or seniority of personnel reporting to the
Employee or a material reduction in the frequency with which, or in the nature
of the matters with respect to which such personnel are to report to the
Employee, other than as part of a Company-wide reduction in staff; (4) a
reduction in the Employee's salary or a material adverse change in the
Employee's perquisites, benefits, contingent benefits or vacation, other than as
part of an overall program applied uniformly and with equitable effect to all
members of the senior management of the Company; (5) a material permanent
increase in the required hours of work or the workload of the Employee; or (6)
the failure of the Board of Directors (or a board of directors of a successor of
the Company) to elect the Employee as President and Chief Executive Officer of
the Company (or a successor of the Company) or any action by the Board of
Directors (or a board of directors of a successor of the Company) removing the
Employee from such office. The term "Involuntary Termination" does not include
Termination for Cause, termination of employment due to death or permanent
disability pursuant to Section 7(f) of this Agreement, retirement or suspension
or temporary or permanent prohibition from participation in the conduct of the
Savings Bank's affairs under Section 8 of the Federal Deposit Insurance Act
("FDIA").
(f) The terms "Termination for Cause" and "Terminated for
Cause" mean termination of the employment of the Employee with the Company
because of the Employee's personal dishonesty, incompetence, willful misconduct,
breach of a fiduciary duty involving personal profit, intentional failure to
perform stated duties, willful violation of any law, rule, or regulation (other
than traffic violations or similar offenses) or final cease-and-desist order, or
material breach of any provision of this Agreement. The Employee shall not be
deemed to have been Terminated for Cause unless and until there shall have been
delivered to the Employee a copy of a resolution, duly adopted by the Board of
Directors at a meeting of the Board duly called and held for such purpose (after
reasonable notice to the Employee and an opportunity for the Employee, together
with the Employee's counsel, to be heard before the Board), stating that in the
good faith opinion of the Board of Directors the Employee has engaged in conduct
described in the preceding sentence and specifying the particulars thereof in
detail.
2. Term. The term of this Agreement shall be a period of three years
commencing on the Effective Date, subject to earlier termination as provided
herein. Beginning on the first anniversary of the Effective Date, and on each
anniversary thereafter, the term of this Agreement shall be extended for a
period of one year in addition to the then-remaining term, provided that (i)
neither the
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Employee nor the Company has given notice to the other in writing at least 90
days prior to such anniversary that the term of this Agreement shall not be
extended further; and (ii) prior to such anniversary, the Board of Directors, or
a committee of the Board of Directors which has been delegated authority to act
on such matters by the Board of Directors ("Committee"), explicitly reviews and
approves the extension. Reference herein to the term of this Agreement shall
refer to both such initial term and such extended terms.
3. Employment. The Employee shall be employed as the President and
Chief Executive Officer of the Company. As such, the Employee shall render all
services and possess the powers as are customarily performed by persons situated
in similar executive capacities, and shall have such other powers and duties as
the Board of Directors may prescribe from time to time. The Employee shall also
render services to the Company or any subsidiary or subsidiaries of the Company
or Savings Bank as requested by the Company from time to time consistent with
his executive position. The Employee shall devote his best efforts and
reasonable time and attention to the business and affairs of the Company to the
extent necessary to discharge his responsibilities hereunder. The Employee may
(i) serve on charitable or civic boards or committees and, in addition, on such
corporate boards as are approved in a resolution adopted by a majority of the
Board of Directors or the Committee, which approval shall not be withheld
unreasonably and (ii) manage personal investments, so long as such activities do
not interfere materially with performance of his responsibilities hereunder.
4. Cash Compensation.
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(a) Salary. The Company agrees to pay the Employee during
the term of this Agreement a base salary (the "Salary") in the annualized amount
of $_________. The Salary shall be paid no less frequently than monthly and
shall be subject to customary tax withholding. The amount of the Employee's
Salary shall be increased (but shall not be decreased) from time to time in
accordance with the amounts of salary approved by the Board of Directors or the
Committee or the board of directors or the appropriate committee of the Company
after the Effective Date. The amount of the Salary shall be reviewed by the
Board of Directors or the Committee at least annually during the term of this
Agreement.
(b) Bonuses. The Employee shall be entitled to participate
in an equitable manner with all other executive officers of the Company in such
performance-based and discretionary bonuses, if any, as are authorized and
declared by the Board of Directors or the Committee for executive officers.
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(c) Expenses. The Employee shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by the Employee in
performing services under this Agreement in accordance with the policies and
procedures applicable to the executive officers of the Company, provided that
the Employee accounts for such expenses as required under such policies and
procedures.
5. Benefits.
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(a) Participation in Benefit Plans. The Employee shall be
entitled to participate, to the same extent as executive officers of the Company
generally, in all plans of the Company relating to pension, retirement, thrift,
profit-sharing, savings, group or other life insurance, hospitalization, medical
and dental coverage, travel and accident insurance, education, cash bonuses, and
other retirement or employee benefits or combinations thereof. In addition, the
Employee shall be entitled to be considered for benefits under all of the stock
and stock option related plans in which the Company's executive officers are
eligible or become eligible to participate.
(b) Fringe Benefits. The Employee shall be eligible to
participate in, and receive benefits under, any other fringe benefit plans or
perquisites which are or may become generally available to the Company's
executive officers, including but not limited to supplemental retirement,
deferred compensation program, supplemental medical or life insurance plans,
company cars, club dues, physical examinations, financial planning and tax
preparation services.
6. Vacations; Leave. The Employee shall be entitled (i) to annual paid
vacation in accordance with the policies established by the Board of Directors
or the Committee for executive officers, and (ii) to voluntary leaves of
absence, with or without pay, from time to time at such times and upon such
conditions as the Board of Directors or the Committee may determine in its
discretion.
7. Termination of Employment.
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(a) Involuntary Termination. The Board of Directors may
terminate the Employee's employment at any time, but, except in the case of
Termination for Cause, termination of employment shall not prejudice the
Employee's right to compensation or other benefits under this Agreement. In the
event of Involuntary Termination other than after a Change in Control which
occurs during the term of this Agreement, the Company shall (i) pay to the
Employee during the remaining term of this Agreement the Salary at the rate in
effect immediately prior to the Date of Termination and (ii) provide to the
Employee during the remaining term of this Agreement substantially the same
group life insurance, hospitalization, medical, dental, prescription drug and
other health
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benefits, and long-term disability insurance (if any) for the benefit of the
Employee and his dependents and beneficiaries who would have been eligible for
such benefits if the Employee had not suffered Involuntary Termination, on terms
substantially as favorable to the Employee, including amounts of coverage and
deductibles and other costs to him, as if he had not suffered Involuntary
Termination.
(b) Termination for Cause. In the event of Termination for
Cause, the Company shall pay to the Employee the Salary and provide benefits
under this Agreement only through the Date of Termination, and shall have no
further obligation to the Employee under this Agreement.
(c) Voluntary Termination. The Employee's employment may be
voluntarily terminated by the Employee at any time upon at least 90 days'
written notice to the Company or such shorter period as may be agreed upon
between the Employee and the Board of Directors. In the event of such voluntary
termination, the Company shall be obligated to continue to pay to the Employee
the Salary and provide benefits under this Agreement only through the Date of
Termination, at the time such payments are due, and shall have no further
obligation to the Employee under this Agreement.
(d) Change in Control. In the event of Involuntary
Termination within 12 months after a Change in Control which occurs at any time
following the Effective Date while the Employee is employed under this
Agreement, the Company shall (i) pay to the Employee in a lump sum in cash
within 25 business days after the Date of Termination an amount equal to 299% of
the Employee's "base amount" as defined in Section 280G of the Code; and (ii)
provide to the Employee during the remaining term of this Agreement
substantially the same group life insurance, hospitalization, medical, dental,
prescription drug and other health benefits, and long-term disability insurance
(if any) for the benefit of the Employee and his dependents and beneficiaries
who would have been eligible for such benefits if the Employee had not suffered
Involuntary Termination, on terms substantially as favorable to the Employee,
including amounts of coverage and deductibles and other costs to him, as if he
had not suffered Involuntary Termination.
(e) Death. In the event of the death of the Employee while
employed under this Agreement and prior to any termination of employment, the
Company shall pay to the Employee's estate, or such person as the Employee may
have previously designated in writing, the Salary which was not previously paid
to the Employee and which he would have earned if he had continued to be
employed under this Agreement through the last day of the calendar month in
which the Employee died, together with the benefits provided hereunder through
such date.
(f) Disability. If the Employee becomes entitled to benefits
under the terms of the then-current disability plan, if any, of the Company (the
"Disability Plan")
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or becomes otherwise unable to fulfill his duties under this Agreement, he shall
be entitled to receive such group and other disability benefits, if any, as are
then provided by the Company for executive employees. In the event of such
disability, this Agreement shall not be suspended, except that (i) the
obligation to pay the Salary to the Employee shall be reduced in accordance with
the amount of disability income benefits received by the Employee, if any,
pursuant to this paragraph such that, on an after-tax basis, the Employee shall
realize from the sum of disability income benefits and the Salary the same
amount as he would realize on an after-tax basis from the Salary if the
obligation to pay the Salary were not reduced pursuant to this Section 7(f); and
(ii) upon a resolution adopted by a majority of the disinterested members of the
Board of Directors or the Committee, the Company may discontinue payment of the
Salary beginning six months following a determination that the Employee has
become entitled to benefits under the Disability Plan or otherwise unable to
fulfill his duties under this Agreement.
(g) Temporary Suspension or Prohibition. If the Employee is
suspended and/or temporarily prohibited from participating in the conduct of the
Savings Bank's affairs by a notice served under Section 8(e)(3) or (g)(1) of the
FDIA, 12 U.S.C. Section 1818(e)(3) and (g)(1), the Company's obligations under
this Agreement shall be suspended as of the date of service, unless stayed by
appropriate proceedings. If the charges in the notice are dismissed, the Company
may in its discretion (i) pay the Employee all or part of the compensation
withheld while its obligations under this Agreement were suspended and (ii)
reinstate in whole or in part any of its obligations which were suspended.
(h) Permanent Suspension or Prohibition. If the Employee is
removed and/or permanently prohibited from participating in the conduct of the
Savings Bank's affairs by an order issued under Section 8(e)(4) or (g)(1) of the
FDIA, 12 U.S.C. Section 1818(e)(4) and (g)(1), all obligations of the Company
under this Agreement shall terminate as of the effective date of the order, but
vested rights of the contracting parties shall not be affected.
(i) Default of the Savings Bank. If the Savings Bank is in
default (as defined in Section 3(x)(1) of the FDIA), all obligations under this
Agreement shall terminate as of the date of default, but this provision shall
not affect any vested rights of the contracting parties.
(j) Termination by Regulators. All obligations under this
Agreement shall be terminated, except to the extent determined that continuation
of this Agreement is necessary for the continued operation of the Savings Bank:
(1) by the Director of the OTS (the "Director") or his or her designee, at the
time the FDIC enters into an agreement to provide assistance to or on behalf of
the Savings Bank under the authority contained in Section 13(c) of the FDIA; or
(2) by the Director or his or her designee, at the time the Director or his or
her designee approves a supervisory merger to resolve problems related to
operation of the Savings Bank or when the Savings Bank is determined by the
Director to be in an unsafe or unsound condition. Any rights of the parties that
have already vested, however, shall not be affected by any such action.
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(k) Reductions of Benefits. Notwithstanding any other
provision of this Agreement, if payments and the value of benefits received or
to be received under this Agreement, together with any other amounts and the
value of benefits received or to be received by the Employee, would cause any
amount to be nondeductible by the Company or any of the Consolidated
Subsidiaries for federal income tax purposes pursuant to or by reason of Section
280G of the Code, then payments and benefits under this Agreement shall be
reduced (not less than zero) to the extent necessary so as to maximize amounts
and the value of benefits to be received by the Employee without causing any
amount to become nondeductible pursuant to or by reason of Section 280G of the
Code. The Employee shall determine the allocation of such reduction among
payments and benefits to the Employee.
(l) Further Reductions. Any payments made to the Executive
pursuant to this Agreement, or otherwise, are subject to and conditioned upon
their compliance with 12 U.S.C. Section 1828(k) and FDIC regulation 12 C.F.R.
Part 359, Golden Parachute and Indemnification Payments.
8. Notice of Termination. In the event that the Company desires to
terminate the employment of the Employee during the term of this Agreement, the
Company shall deliver to the Employee a written notice of termination, stating
whether such termination constitutes Termination for Cause or Involuntary
Termination, setting forth in reasonable detail the facts and circumstances that
are the basis for the termination, and specifying the date upon which employment
shall terminate, which date shall be at least 30 days after the date upon which
the notice is delivered, except in the case of Termination for Cause. In the
event that the Employee determines in good faith that he has experienced an
Involuntary Termination of his employment, he shall send a written notice to the
Company stating the circumstances that constitute such Involuntary Termination
and the date upon which his employment shall have ceased due to such Involuntary
Termination. In the event that the Employee desires to effect a Voluntary
Termination, he shall deliver a written notice to the Company, stating the date
upon which employment shall terminate, which date shall be at least 90 days
after the date upon which the notice is delivered, unless the parties agree to a
date sooner.
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9. Attorneys' Fees. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel) incurred by the
Employee as a result of (i) the Employee's contesting or disputing any
termination of employment, or (ii) the Employee's seeking to obtain or enforce
any right or benefit provided by this Agreement or by any other plan or
arrangement maintained by the Company (or a successor) or the Consolidated
Subsidiaries under which the Employee is or may be entitled to receive benefits;
provided that the Company's obligation to pay such fees and expenses is subject
to the Employee's prevailing with respect to the matters in dispute in any
action initiated by the Employee or the Employee's having been determined to
have acted reasonably and in good faith with respect to any action initiated by
the Company.
10. No Assignments.
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(a) This Agreement is personal to each of the parties
hereto, and no party may assign or delegate any of its rights or obligations
hereunder without first obtaining the written consent of the other party;
provided, however, that the Company shall require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) by
an assumption agreement in form and substance satisfactory to the Employee, to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it, if no such
succession or assignment had taken place. Failure to obtain such an assumption
agreement prior to the effectiveness of any such succession or assignment shall
be a breach of this Agreement and shall entitle the Employee to compensation and
benefits from the Company in the same amount and on the same terms as the
compensation pursuant to Section 7(d) of this Agreement. For purposes of
implementing the provisions of this Section 10(a), the date on which any such
succession becomes effective shall be deemed the Date of Termination.
(b) This Agreement and all rights of the Employee hereunder
shall inure to the benefit of and be enforceable by the Employee's personal and
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
11. Notice. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, to the Company at its home
office, to the attention of the Board of Directors with a copy to the Secretary
of the Company, or, if to the Employee, to such home or other address as the
Employee has most recently provided in writing to the Company.
12. Amendments. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein otherwise
provided.
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13. Headings. The headings used in this Agreement are included solely
for convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
14. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
15. Governing Law. This Agreement shall be governed by the laws of the
State of Idaho.
16. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction. The OTS may appear at any arbitration hearing but the decision is
not binding on the OTS.
17. Deferral of Non-Deductible Compensation. In the event that the
Employee's aggregate compensation (including compensatory benefits which are
deemed remuneration for purposes of Section 162(m) of the Code) from the Company
and the Consolidated Subsidiaries for any calendar year exceeds the maximum
amount of compensation deductible by the Company or any of the Consolidated
Subsidiaries in any calendar year under Section 162(m) of the Code (the "maximum
allowable amount"), then any such amount in excess of the maximum allowable
amount shall be mandatorily deferred with interest thereon at 8% per annum to a
calendar year such that the amount to be paid to the Employee in such calendar
year, including deferred amounts and interest thereon, does not exceed the
maximum allowable amount. Subject to the foregoing, deferred amounts including
interest thereon shall be payable at the earliest time permissible.
18. Knowing and Voluntary Agreement. Employee represents and agrees
that he has read this Agreement, understands its terms, and that he has the
right to consult counsel of choice and has either done so or knowingly waives
the right to do so. Employee also represents that he has had ample time to read
and understand the Agreement before executing it and that he enters into this
Agreement without duress or coercion from any source.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
Attest: HOME FEDERAL BANK
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---------------------------- By:
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Its:
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EMPLOYEE
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Xxxxxx X. Xxxxxxx
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