Exhibit 10(av)
EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
This Agreement, made and entered into this 1st day of November, 2002, by
and between HOMEFEDERAL BANK, Columbus, Indiana (the "Bank"), a state chartered
commercial bank organized and existing under the laws of the State of Indiana,
and XXXXXXX X. XXXXXX (the "Executive"), a key employee and executive.
WITNESSETH:
WHEREAS, the Executive is employed by the Bank; and
WHEREAS, the Bank recognizes the valuable services heretofore performed for
it by Executive and wishes to encourage continued employment; and
WHEREAS, the Executive wishes to be assured that he will be entitled to a
certain amount of additional compensation for some definite period of time from
and after his retirement from active service with the Bank or other termination
of his employment and wishes to provide his beneficiary with benefits from and
after his death; and
WHEREAS, the parties hereto wish to provide the terms and conditions upon
which the Bank shall pay such additional compensation to Executive after his
retirement or other termination of his employment and/or death benefits to his
beneficiary after his death, and
WHEREAS, the parties hereto intend that this Agreement be considered an
unfunded arrangement, maintained primarily to provide supplemental retirement
income for the Executive, a member of a select group of management or highly
compensated employees of the Bank, for purpose of the Employee Retirement Income
Security Act of 1974, as amended; and
WHEREAS, the Bank has adopted this Executive Supplemental Retirement Income
Agreement which controls all issues relating to the Supplemental Retirement
Income Benefit as described herein;
NOW, THEREFORE, in consideration of the premises and of the mutual promises
herein contained, the parties hereto agree as follows:
SECTION I
DEFINITIONS
When used herein, the following words shall have the meanings below unless the
context clearly indicates otherwise:
1.1 "Accrued Benefit" means that portion of the Supplemental Retirement
Income Benefit which is required to be expensed and accrued under
generally accepted accounting principles by any appropriate
methodology which the Board of Directors may require in the exercise
of its sole discretion. Such Accrued Benefit shall be paid to
Executive in one hundred eighty (180) equal monthly installments. The
interest factor used to annuitize the Accrued Benefit shall be equal
to the average Cost of Funds for the Bank for the prior twelve (12)
month period.
1.2 "Act" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
1.3 "Bank" means HOMEFEDERAL BANK and any successor thereto.
1.4 "Beneficiary" means the person or persons designated as Beneficiary in
writing to the Bank to whom the share of deceased Executive's account
is payable. If no Beneficiary is so designated, then the Executive's
Spouse, if living, will be deemed the Beneficiary. If the Executive's
Spouse is not living, then the Children of the Executive will be deemed
Beneficiaries and will take on a per stirpes basis. If there are no
Children, then the Estate of the Executive will be deemed the
Beneficiary.
1.5 "Cause" means personal dishonesty, willful misconduct, willful
malfeasance, breach of 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), final cease-and desist order, material breach of any
provision of this Agreement, or gross negligence in matters of material
importance to the Bank.
1.6 "Change in Control" means that the Bank is merged with or acquired by
another corporation or entity, or undergoes any other organic change in
its structure. Change in Control shall also be deemed to have occurred
if:
(i) any "person", including a "group" as determined in accordance with
Section 13(d)(3) of the Securities Exchange Act of 1934 (the
"Exchange Act"), is or becomes the beneficial owner, directly or
indirectly, of securities of the Bank representing 20% or more of
the combined voting power of the Bank's then outstanding
securities; or
(ii) as a result of, or in connection with, any tender offer or
exchange offer, merger or other business combination, sale of
assets or contested election, or any combination of the foregoing
transactions (a "Transaction"), the persons who were directors of
the Bank before the Transaction shall cease to constitute a
majority of the Board of Directors of the Bank or any successor to
the Bank; or
(iii) the Bank is merged or consolidated with another corporation or
entity and as a result of the merger or consolidation less than
80% of the outstanding voting securities of the surviving or
resulting corporation shall then be owned in the aggregate by the
former stockholders of the Bank, other than (1) affiliates within
the meaning of the Exchange Act or (2) any party to the merger or
consolidation; or
(iv) a tender offer or exchange offer is made and consummated for the
ownership of securities of the Bank representing 20% or more of
the combined voting power of the Bank's then outstanding voting
securities; or
(v) the Bank transfers substantially all of its assets to another
corporation which is not a wholly- owned subsidiary of the Bank;
1.7 "Children" means the Executive's children, both natural and adopted.
1.8 "Code" means the Internal Revenue Code of 1986 as amended from time to
time.
1.9 "Cost of Funds" shall be equal to total interest expense, divided by the
monthly weighted average of total interest-bearing liabilities. The time frame
for measuring Cost of Funds shall be the last twelve (12) complete months
immediately prior to the event which triggered the need for measurement.
1.10 "Early Retirement Date" means retirement from service, upon meeting certain
conditions as specified in this Agreement, which is effective prior to the
Normal Retirement Date.
1.11 "Effective Date" shall be the date of execution of this agreement.
1.12 "Estate" means the Estate of the Executive.
1.13 "Normal Retirement Date" means the first day of the month coincident with
or next following the Executive's sixty-fifth (65) birthday.
1.14 "Permanently and Totally Disabled" means the Executive's suffering a
sickness, accident or injury which has been determined by the carrier of any
individual or group disability insurance policy covering the Executive, or by
the Social Security Administration, to be a disability rendering the Executive
totally and permanently disabled. The Executive must submit proof to the Bank of
the carrier's or Social Security Administration's determination upon the request
of the Bank.
1.15 "Postponed Retirement Date" means the first day of the month coincident
with or next following the Executive's termination of employment with the Bank
after his Normal Retirement Date.
1.16 "Spouse" means the individual to whom the Executive is legally married
at the time of the Executive's death.
1.17 "Suicide" means the act of intentionally killing oneself.
1.18 "Supplemental Retirement Income Benefit" means an annual amount equal
to an annualized benefit of Fifty Thousand ($50,000) Dollars. Payments
shall be made in equal monthly installments for one hundred eighty
(180) months.
1.19 "Survivor's Benefit" means monthly level payments totaling Fifty
Thousand ($50,000) Dollars annually for fifteen (15) years.
1.20 "Tax Rate" shall mean the maximum effective rate of combined Federal
and State taxes the Bank was subject to on its latest income tax
returns.
1.21 "Vested" means the non-forfeitable portion of the benefit to which the
Executive is entitled.
1.22 "Vested Accrued Benefit" means that portion of the Executive's Accrued
Benefit in which he is vested. It is computed by multiplying the Accrued Benefit
by the vesting percentage specified in Subsection 3.2.
1.23 "Years of Service" means the total number of complete calendar years of
continuous employment (including authorized leaves of absence), beginning from
the date of execution of this Agreement.
SECTION II
PRE-RETIREMENT AND POST-RETIREMENT DEATH BENEFITS
2.1 Death Prior to Termination of Employment. In the event of Executive's death
prior to termination of employment with the Bank, while covered by the
provisions of this Agreement, Executive's Beneficiary shall be paid the
Survivor's Benefit. Payments shall commence within thirty (30) days after the
date of death of Executive.
2.2 Death During Receipt of Benefit. In the event of death of Executive while
receiving monthly benefits under this Agreement, then Executive's Beneficiary
shall be entitled to receive a death benefit which shall be payable for the
balance of the one hundred eighty (180) month period, in an amount equal to the
benefit payments made to Executive prior to his death.
2.3 Death by Reason of Suicide. In the event Executive dies by reason of
suicide at any time prior to November 1, 2004, the Bank shall be under
no obligation to provide any benefits to the executive's Beneficiary.
2.4 Additional Death Benefit - Burial Expense. In addition to the
above-described death benefits, upon his death, Executive's Beneficiary shall be
entitled to receive a one-time lump sum death benefit in the amount of Fifteen
Thousand ($15,000) Dollars.
SECTION III
SUPPLEMENTAL RETIREMENT INCOME BENEFIT AND DISABILITY BENEFIT
3.1 Normal Retirement Benefit. At Normal Retirement Date, if Executive is still
covered by this Agreement, the Bank shall commence payments of the Supplemental
Retirement Income Benefit. Subject to the provisions and limitations of this
Agreement, the Bank shall pay to the Executive annual benefits of Fifty Thousand
($50,000) Dollars, payable in one hundred eighty (180) equal monthly
installments. Such payments shall commence the first day of the month next
following the Executive's retirement date and shall be payable monthly
thereafter until all payments have been made.
3.2 Early Retirement Benefit. Executive shall have the elective right to receive
early retirement benefits, provided he shall have attained age of sixty (60) and
completed five (5) Years of Service. Approval of the Board of Directors of the
Bank is required as a condition precedent to receiving early retirement
benefits. Upon Executive's election to receive such benefits and upon obtaining
the requisite Board approval, Executive shall be entitled to receive the
Supplemental Retirement Income Benefit specified in Subsection 3.1, reduced by
4.5% per year for each year that early retirement precedes Normal Retirement
Date and discounted to present value by an interest factor equal to the Bank's
average Cost of Funds for the twelve (12) month period prior to Early Retirement
Date. Payment of this early retirement benefit shall commence within thirty (30)
days after Executive's Early Retirement Date. Absent Board approval, Executive's
early retirement benefit shall be limited to his Vested Accrued Benefit at the
date Executive elects early
retirement. Early retirement benefits payments shall commence within
thirty (30) days after Executive's Early Retirement Date.
3.3 Postponed Retirement Benefit. The postponed retirement benefit of Executive
shall be the Supplemental Retirement Income Benefit as set forth in Subsection
3.1. However, the Board of Directors, in the exercise of its sole discretion,
may elect to increase benefits if retirement is postponed past the Normal
Retirement Date. The postponed retirement benefit shall not be paid to Executive
until the Postponed Retirement Date.
3.4 Disability. If Executive becomes Permanently and Totally Disabled prior to
reaching his retirement, Executive shall be entitled to his Accrued Benefit at
the time of disability. Payments shall begin within thirty (30) days after
Executive becomes Permanently and Totally Disabled. In the event Executive dies
while receiving payments pursuant to this Subsection, or after becoming eligible
for such payments but before the actual commencement of such payments, his
Beneficiary shall be entitled to receive annualized payments in the amount of
Fifty Thousand ($50,000) Dollars for the remainder of the one hundred eighty
(180) month period. At Executive's death, to the extent the combined disability
benefits received and death benefits received or to be received under this
Section are less than Seven Hundred Fifty Thousand ($750,000) Dollars,
Executive's Beneficiary shall be entitled to a lump sum payment to make up the
difference.
SECTION IV
EXECUTIVE'S RIGHT TO ASSETS
The rights of the Executive, any Beneficiary of the Executive, or any other
person claiming through the Executive under this Agreement, shall be solely
those of an unsecured general creditor of the Bank. The Executive, the
Beneficiary of the Executive, or any other person claiming through the
Executive, shall only have the right to receive from the Bank those payments as
specified under this Agreement. The Executive agrees that he, his Beneficiary,
or any other person claiming through him shall have no rights or interests
whatsoever in any asset of the Bank, including any insurance policies or
contracts which the Bank may possess or obtain to informally fund this
Agreement. Any asset used or acquired by the Bank in connection with the
liabilities it has assumed under this Agreement, except as expressly provided,
shall not be deemed to be held under any trust for the benefit of the Executive
or his Beneficiaries, nor shall it be considered security for the performance of
the obligations of the Bank. It shall be, and remain, a general, unpledged, and
unrestricted asset of the Bank.
SECTION V
RESTRICTIONS UPON FUNDING
The Bank shall have no obligation to set aside, earmark or entrust any fund
or money with which to pay its obligation under this Agreement. The Executive,
his Beneficiaries or any successor in interest to him shall be and remain simply
a general creditor of the Bank in the same manner as any other creditor having a
general claim for matured and unpaid compensation. The Bank reserves the
absolute right, at its sole discretion, to either fund the obligations
undertaken by this Agreement or to refrain from funding the same and to
determine the extent, nature, and method of such informal funding. Should the
Bank elect to fund this Agreement, in whole or in part, through the purchase of
life insurance, mutual funds, disability policies or annuities, the Bank
reserves the absolute right, in its sole discretion, to terminate such funding
at any time, in whole or in part. At no time shall Executive be deemed to have
any lien nor right, title or interest in or to any specific funding investment
or to any assets of the Bank. If the Bank elects to invest in a life insurance,
disability or annuity policy upon the life of the Executive, then Executive
shall assist the Bank by freely submitting to a physical examination and
supplying such additional information necessary to obtain such insurance or
annuities.
SECTION VI
ACCELERATION OF PAYMENTS
The Bank reserves the rights to accelerate the payment of any benefits
payable under this Agreement without the consent of the Executive, his Estate,
his Beneficiaries, or any other person claiming through the Executive. In the
event that the Bank accelerates the payment, the benefit shall be discounted by
a rate equal to the average Cost of Funds of the Bank for the prior twelve (12)
month period.
SECTION VII
ALIENABILITY AND ASSIGNMENT PROHIBITION
Neither Executive nor any Beneficiary under this Agreement shall have any
power or right to transfer, assign, anticipate, hypothecate, mortgage, commute,
modify or otherwise encumber in advance any of the benefits payable hereunder,
nor shall any of said benefits be subject to seizure for the payment of any
debts, judgments, alimony or separate maintenance owed by the Executive of his
Beneficiary, nor be transferable by operation of law in the event of bankruptcy,
insolvency or otherwise. In the event Executive or any Beneficiary attempts
assignment, communication, hypothecation, transfer or disposal of the benefits
hereunder, the Bank's liabilities shall forthwith cease and terminate.
SECTION VIII
TERMINATION OF EMPLOYEMENT
8.1 Termination of Service Prior to Retirement Date. If, prior to Executive's
Normal Retirement Date, the Executive voluntarily resigns or is terminated
without Cause by the Bank, the Bank shall pay to the Executive an amount equal
to the Executive's Vested Accrued Benefit existing at the date of termination,
using the following vesting schedule:
Years of Service Percentage of Total Benefit Vested
---------------- ----------------------------------
1 year 20%
2 years 40%
3 years 60%
4 years 80%
5 years 100%
Payment of the Vested Accrued Benefit shall commence within thirty (30)
days after termination of employment.
8.2 Termination of Service for Cause. Should Executive be terminated for Cause
pursuant to the Bylaws of the Bank, his benefits under this Agreement shall be
forfeited and this Agreement shall become null and void.
8.3 Termination Following Change in Control. If Executive's termination of
employment is related to a Change in Control, Executive shall be entitled to
receive his Supplemental Retirement Income Benefit in a lump sum, discounted to
present value using a discount rate to be determined by multiplying the Bank's
cost of funds by a factor equal to one (1) minus the Bank's tax Rate, which
single lump sum payment shall be made within thirty (30) days of Executive's
termination. (A termination of employment shall be considered related to a
Change in Control if, at any time during the 36-month period following said
Change in Control, the employment of the Executive is terminated by the Bank or
if, at any time during such period, the Executive is demoted or undergoes a
material change in his title, position, duties or responsibilities, or has a
material reduction in his compensation, including fringe benefits, and the
Executive terminates employment with the Bank.) Should Executive die after being
terminated following a Change in
Control, but prior to beginning to receive retirement benefits, his
Beneficiary shall be entitled to receive the Survivor's Benefit, payment of
which shall commence within thirty (30) days following Executive's death. It is
not the intent of this Agreement to have the Executive taxed as a result of
payments made pursuant to a Change in Control, under Internal Revenue Code
Section 4999. In the event Executive is entitled to receive payments following a
Change in Control, pursuant to any other agreements in effect between Executive
and Bank at the date of such Change in Control and unless the other agreements
provide otherwise, the payments under such other agreements shall be reduced
first, but only to the extent necessary to avoid the tax imposed under Code
Section 4999, and, if the Code Section 4999 limits are still exceeded, payments
under this Agreement shall be reduced but again only to the extent
necessary to avoid the tax imposed under Code Section 4999.
8.4 Deferral of Payment. Notwithstanding anything contained in this Agreement to
the contrary, the Bank, in its sole discretion, may (but is not required to)
defer the payment of all or a portion of any amounts payable under this
Agreement but only to the extent necessary to preserve the federal income tax
deductibility of the cash payment of the payments under Code Section 162(m);
provided, however, that if the Bank defers payment, the amount of any deferred
payment shall begin to accrue interest at the Current Interest Rate (as defined
below) beginning on the first calendar day of the calendar year immediately
following the calendar year during which the payment would have otherwise been
made but for the deferral. Payments may not be
deferred beyond the first calendar year or years in which the payment
would be deductible in full by the Bank for federal income tax purposes under
Code Section 162(m). The term "Current Interest Rate" shall change each January
1 and shall be equal to the Prime Rate as published in The Wall Street Journal
on the first business day following such January 1.
SECTION IX
ACT PROVISIONS
9.1 Named Fiduciary and Administrator. The Bank or its successor in interest
shall be the Named Fiduciary And Agreement Administrator (the "Administrator")
of this Agreement. As Administrator, the Bank shall be responsible for the
management, control and administration of the Agreement as established herein.
It may delegate to others certain aspects of the management and operation
responsibilities of the Agreement including the employment of advisors and
delegation of ministerial duties to qualified individuals.
9.2 Claims Procedure. An Executive or beneficiary ("claimant") who has not
received benefits under the Plan/Agreement that he or she believes should be
paid shall make a claim for such benefits as follows:
9 .2.1 Initiation - Written Claim. The claimant initiates a claim by
submitting to the Company a written claim for the benefits.
9.2.2 Timing of Company Response. The Company shall respond to such
claimant within 90 days after receiving the claim. If the Company determines
that special circumstances require additional time for processing the claim, the
Company can extend the response period by an additional 90 days by notifying the
claimant in writing, prior to the end of the initial 90-day period, that an
additional period is required. The notice of extension must set forth the
special circumstances and the date by which the Company expects to render its
decision.
9.2.3 Notice of Decision. If the Company denies part or all of the
claim, the Company shall notify the claimant in writing of such denial. The
Company shall write the notification in a manner calculated to be understood by
the claimant. The notification shall set forth:
9.2.3.1 The specific reasons for the denial,
9.2.3.2 A reference to the specific provisions of the
Plan/Agreement on which the denial is based,
9.2.3.3 A description of any additional information or
material necessary for the claimant to perfect the claim and an explanation of
why it is needed,
9.2.3.4 An explanation of the Plan's/Agreement's review
procedures and the time limits applicable to such procedures, and
9.2.3.5 A statement of the claimant's right to bring a civil
action under ERISA Section 502(a) following an adverse benefit determination on
review.
SECTION X
MISCELLANEOUS
10.1 Disclosure. Each Executive shall receive a copy of his Agreement and the
Administrator will make available, upon request, a copy of the rules and
regulations that govern this type of Agreement.
10.2 State Law. The Agreement is established under, and will be construed
according to, the laws of the State of Indiana, to the extent that such laws are
not preempted by the Act and valid regulations published thereunder.
10.3 Severability. In the event that any of the provisions of this Agreement or
portion thereof, are held to be inoperative or invalid by any court of competent
jurisdiction, then: (1) insofar as is reasonable, effect will be given to the
intent manifested in the provisions held invalid or inoperative, and (2) the
validity and enforceability of the remaining provisions will not be affected
thereby.
10.4 Incapacity of Recipient. In the event Executive is declared incompetent and
a conservator or other person legally charged with the care of his person or of
his Estate is appointed, any benefits under the Agreement to which such
Executive is entitled shall be paid to such conservator or other person legally
charged with the care of his person or his Estate. Except as provided above in
this paragraph, when the Bank's Board of Directors in its sole discretion,
determines that anExecutive is unable to manage his financial affairs, the Board
may direct the Bank to make distributions to any person for the benefit of such
Executive.
10.5 Unclaimed Benefit. Each Executive shall keep the Bank informed of his
current address and current address of his Beneficiaries. The Bank shall not be
obligated to search for the whereabouts of any person. If the location of an
Executive is not made known to the Bank within three years after the date on
which any payment of the Executive's Supplemental Retirement Income Benefit may
be made, payment may be made as though the Executive had died at the end of the
three-year period. If, within one additional year after such three-year period
has elapsed, or, within three years after the actual death of the Executive, the
Bank is unable to locate any Beneficiary of the Executive, then the Bank may
fully discharge its obligation by payment to the Estate.
10.6 Limitations on Liability. Notwithstanding any of the preceding provisions
of the Agreement, neither the Bank, or any individual acting as an employee or
agent of the Bank or as a member of the Board of Directors shall be liable to
any Executive, former Executive, or any other person for any claim, loss,
liability or expense incurred in connection with the Agreement.
10.7 Gender. Whenever, in this Agreement, words are used in the masculine or
neuter gender, they shall be read and construed as in the masculine, feminine or
neuter gender, whenever they should so apply.
10.8 Affect on Other Corporate Benefit Agreement. Nothing contained in this
Agreement shall affect the right of the Executive to participate in, or be
covered by, any qualified or non-qualified pension, profit sharing, group, bonus
or other supplemental compensation or fringe benefit agreement constituting a
part of the Bank's existing or future compensation structure.
10.9 Headings. Headings and sub-headings in this Agreement are inserted for
reference and convenience only and shall not be deemed a part of this Agreement.
10.10 No Effect on Employment Rights. Nothing contained herein will confer upon
the Executive the right to be retained in the service of the Bank nor limit the
right of the Bank to discharge or otherwise deal with Executive without regard
to the existence of the Agreement. Pursuant to 12 C.F.R. ss. 563.39(b), the
following conditions shall apply to this Agreement:
(1) The Bank's Board of Directors may terminate the Executive at any
time, but any
termination by the Bank's Board of Directors other than termination for Cause,
shall not prejudice the Executive's vested right to compensation or other
benefits under the contract. As provided in Section 8.2, if the Executive is
terminated for Cause pursuant to the Bylaws of the Bank, his benefits under this
Agreement shall be forfeited. He shall have no right to receive additional
compensation or other benefits for any period after
termination for Cause.
(2) If the Executive is suspended and/or temporarily prohibited from
participating in the
conduct of the Bank's affairs by a notice served under Section 8(e)(3) or (g)(1)
of the Federal Deposit Act (12 U.S.C. 1818(e)(3) and (g)(1) the Bank's
obligations under the contract shall be suspended as of the date of termination
of service unless stayed by appropriate proceedings. If the charges in the
notice are dismissed, the Bank may in its discretion (i) pay the Executive all
or part of the compensation withheld while its contract obligations were
suspended and (ii) reinstate (in whole or in part) any of its obligations
which were suspended.
(3) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by any order issued under
Section 8(e)(4) or (g)(1), all non- vested obligations of the Bank under the
contract shall terminate as of the effective date of the order. As provided in
Section 8.1, the Executive shall be entitled to an amount equal to the
Executive's Vested Accrued Benefit as of the date of termination. Payment of the
Vested Accrued Benefit shall commence within thirty (30) days of his termination
in the event he is terminated pursuant to such order.
(4) If the Bank is in default (as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act), all non-vested obligations under the contract
shall terminate as of the date of default.
(5) All non-vested obligations under the contract shall be terminated,
except to the extent determined that continuation of the contract is necessary
for the continued operation of the Bank:
(i) by the Executive of his designee at the time the Federal
Deposit Insurance
Corporation or the Resolution Trust Corporation enters into an agreement to
provide assistance to or on behalf of the Bank under the authority contained ss.
13(c) of the Federal Deposit Insurance Act; or
(ii)by the Executive or his designee, at the time the
Executive or his designee approves a supervisory merger to resolve problems
related to operation of the Bank or when the Bank is determined by the Director
to be in an unsafe or unsound condition.
Any rights of the party that have already vested (i.e., the
Executive's Vested Accrued Benefit), however, shall not be affected by such
action.
10.11 Litigation Expense. Any legal expenses incurred by the Executive or his
Beneficiary relating to the enforcement or enforceability of any benefit
obligations hereunder shall be paid or reimbursed by the Bank to the extent
permitted by law; provided, however, that except as provided below, the maximum
aggregate payment and reimbursement of legal expenses under this Section 10.11
with respect to the Executive or his Beneficiary shall not exceed Ten Thousand
Dollars ($10,000.00); provided, further, that this Ten Thousand Dollars
($10,000.00) limitation shall be reduced by the amount of any legal expenses
incurred by the Executive or his Beneficiary which were paid or reimbursed by
the Bank under any other plan or arrangement entered into by the Bank and
Executive. Notwithstanding anything contained in this paragraph 10.11 to the
contrary, the Executive or his Beneficiary shall be entitled to payment or
reimbursement of legal expenses in excess of Ten Thousand Dollars ($10,000.00)
if the expenses were incurred as a result of a dispute under this Agreement in
which the Executive or his Beneficiary obtains a final judgment in his favor
from a court of competent jurisdiction or his claim is settled by the Bank prior
to the rendering of a judgment by such a court.
SECTION XI
AMENDMENT AND TERMINATION
11.1 Amendment - Reduction in Benefits. The Board may, in its sole discretion,
elect to amend the Agreement so as to reduce all classes of benefits payable
under the Agreement by up to 30%. In the event such a reduction is effectuated,
Executive's Beneficiary shall, upon his death, be entitled to recover the entire
30% reduction. Each payment which Executive's Beneficiary is entitled to receive
shall be increased on a pro rata basis so as to allow for the recovery of the
30% reduction.
11.2 Amendment or Termination. With the exception set forth in 11.1 above,
this Agreement may be amended only by mutual consent of parties.
SECTION XII
EXECUTION
12.1 This Agreement sets forth the entire understanding of the parties hereto
with respect to the transaction contemplated hereby, and any previous agreements
or understandings between the parties hereto regarding the subject matter hereof
are merged into and superseded by this Agreement.
12.2 This Agreement shall be executed in duplicate, each copy of which, when so
executed and delivered, shall be an original, but both copies shall together
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on this 1st day of November, 2002.
/s/ Xxxxxxx X. Xxxxxx
(Executive)
HOMEFEDERAL BANK
By: /s/ Xxxx X. Xxxxx, Xx.
Chairman / Chief Executive Officer
(Title)
