HOME FEDERAL SAVINGS BANK EMPLOYMENT AGREEMENT
EXHIBIT 10.17
HOME FEDERAL SAVINGS BANK
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of this 8th day of April, 2000, contemporaneously with the Change-in-Control Agreement, by and between HOME FEDERAL SAVINGS BANK, a South Dakota corporation (hereinafter referred to as the "Bank"), P. ▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Employee"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
RECITALS
A. The Employee is currently serving as
Senior Vice President/Commercial Banking.
B. The Board of Directors of the Bank recognizes the important
service that the Employee provides and will continue to provide for the Bank.
C. The Board of Directors of the Bank has approved and authorized
the execution of this Agreement with the Employee to take effect as stated in
Section 4 hereof.
D. The Board of Directors of the Bank has approved and
authorized the execution of a Change-in-Control Agreement with the Employee on
contemporaneous basis with this Agreement.
COVENANTS
NOW, THEREFORE, in
consideration of the foregoing and of the respective covenants and agreements
of the parties herein contained and further contained in the Change-in-Control
Agreement between the parties executed contemporaneously herewith, the parties
agree as follows:
1. Employment.
(a) The Employee will be employed by the Bank as Senior Vice President/Commercial Banking. As Senior Vice President, Employee shall have all such authority, powers, duties and responsibilities customarily afforded to the office of Senior Vice President/Commercial Banking. The Employee shall continue to devote his best efforts and substantially all his business time and attention to the business and affairs of the Bank and its subsidiaries and affiliated companies, if any. The Employee shall not, during the term of this Agreement, engage in any other business activity without the Bank's prior written consent.
(b) Nothing in the preceding paragraph shall preclude the Employee from (i) serving on the Boards of Directors of other for-profit or of non-profit corporations, as long as service on the same does not conflict with the Employee's obligations to provide his full-time, best efforts employment to the Bank, and (ii) devoting time to "passive investments" not related to service performed on behalf of the Bank. "Passive investments" shall mean investments which do not require any substantial services on behalf of the Employee to the entity which constitutes the investment, which will not detract from the Employee's performance under this Agreement and in which the Employee will invest only his personal funds and/or those of his family.
2. Compensation.
(a) Base Salary. The Bank agrees to pay the Employee a base salary of NINETY-FIVE THOUSAND AND 00/100 DOLLARS ($95,000) per year during the term of this Agreement subject to any increases as provided below ("Base Salary"). The Employee's base salary shall be reviewed annually.
(b) Short-Term Incentive Bonus. Employee shall be entitled to participate in the Bank's Value-Added Short-Term Incentive Plan and shall receive whatever award is provided for Employee under that Plan.
(c) Expenses. During the term of his employment hereunder, the Employee shall be entitled to receive prompt reimbursement of all reasonable expenses incurred by him (in accordance with the policies and procedures at least as favorable to the Employee as those presently applicable to the Bank's Executive Officers) in performing services hereunder, provided that the Employee properly accounts therefor in accordance with the Bank policy.
3. Benefits.
(a) Participation in Retirement and Employee Benefit Plans. The Employee shall be entitled while employed hereunder to participate equitably in, and receive benefits under, all plans relating to stock options, stock purchases, pension, salary deferral, thrift, profit–sharing, group life insurance, medical coverage, tuition reimbursement, annual bonus, disability, and other retirement or employee benefits or combinations thereof, that are now or hereafter maintained for the benefit of the Bank's Executive Officers of the same ranking or for its employees generally.
(b) Fringe Benefits. The Employee shall be eligible while employed hereunder to participate in, and receive benefits under, any other fringe benefits, which are or may become applicable to the Bank's Executive Officers of the same ranking or to its employees generally.
4. Term.
The term of employment under this Agreement shall be a period of three (3) years commencing on the date this Agreement was executed by both parties (the "Commencement Date"), subject to earlier termination as provided herein. The term of employment under this Agreement shall be extended under the same terms for a period of one year unless at least three months prior to the expiration of the initial term or any renewal term, either the Employee gives written notice to the Chief Executive Officer or the Chief Executive Officer gives notice to the Employee that it intends to terminate the Agreement at the end of its initial term or renewal thereof. Such notice shall be in writing. Reference herein to the term of this Agreement shall refer to both such initial term and any extensions thereof.
5. Personal Time Off.
The Employee shall be entitled, without loss of pay, to absent himself voluntarily from the performance of his employment under this Agreement, all such voluntary absences to count as Personal Time Off ("PTO"), provided that:
(a) The Employee shall be entitled to PTO, in the amount accrued under the Home Federal Savings Bank's Personal Time Off Policy and Procedures (the "PTO Policy").
(b) The Employee shall utilize any PTO benefit in accordance with the PTO Policy.
(c) The Employee shall schedule the timing of PTO in a manner, which does not interfere with the Bank's ability to effectively deliver quality service.
6. Termination of Employment.
(a) Termination for Cause. The Chief Executive Officer may terminate the Employee's employment at any time for Cause. Upon Termination for Cause, Employee shall be entitled to compensation and benefits up to the date of employment termination, but shall be entitled to no additional compensation or benefits.
Cause. Termination by the Bank of Employee's employment for "Cause" shall mean termination upon (i) the willful and continued failure by Employee to substantially perform Employee's duties with the Bank (other than any such failures resulting from Employee's disability or from Employee's termination for Good Reason), after a demand for substantial performance is delivered to Employee which specifically identifies the manner in which the Bank believes that Employee has not substantially performed his duties, and Employee has failed to resume substantial performance of those duties on a continuous basis within 14 days of receiving such demand; (ii) Employee's willful engaging in conduct which is demonstrably and materially injurious to the Bank, monetarily or otherwise; (iii) Employee's conviction of a felony which impairs his ability substantially to perform Employee's duties with the Bank; (iv) the Employee's personal dishonesty, incompetence, breach of fiduciary duty for personal profit or willful violation of any law, rule or regulation (other than traffic violations or similar offenses) or final cease and desist order; or (v) the Employee's material breach of this Agreement. For purposes of this Subsection, no act, or failure to act, on the part of the Employee shall be deemed "willful" unless done, or omitted to be done, by Employee not in good faith and without reasonable belief that Employee's action or omission was in the best interest of the Bank. Failure to perform duties with the Bank during any period of disability shall not constitute Cause.
(b) Employment
at Will. Both parties recognize
that the Employee is an "at will" employee and that either party may
terminate the employment relationship at any time with or without reason. To terminate the employment relationship,
either party shall give one month written notice of such termination, or in the
alternative, pay the Employee compensation at his normal rate of pay for the notice period.
If the employment of the
Employee is involuntarily terminated, and such termination is not for Cause,
the Employee shall be entitled to receive compensation and benefits through the
last day of active employment.
7. Reimbursement of Attorney's Fees.
(a) Termination for Cause. In the event the Bank purports to terminate the Employee for Cause, but it is determined by a court of competent jurisdiction that Cause did not exist for such termination, or if in any event it is determined by any such court 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. Such reimbursement shall be in addition to all rights to which the Employee is otherwise entitled under this Agreement.
8. Covenant Not to Compete. The Employee covenants and agrees that in the event he voluntarily terminates his employment under Section 6(b) hereof, for a period commencing at the Date of Termination and continuing for a period of 12 months thereafter, the Employee will not: (a) disclose any trade secrets owned by the Bank and learned by the Employee as a result of such employment; (b) solicit any customers who were customers of the Bank within the 12 months immediately preceding the Date of Termination for the benefit of any company or business described in (c) below; or (c) own any part of a Competitor(1) (other than a public company as to which Employee owns five percent or less of the outstanding Common Stock) or work on a full-time, part-time or consulting basis for any corporation, partnership, sole proprietorship, or any other legal entity which is a Competitor (irrespective of the actual location of the Competitor) within the continental United States. For purposes of this Agreement, the Employee's obligations of nonuse and nondisclosure set forth in this Section 8 shall not apply to any information which: (a) is or becomes part of the public domain otherwise than as a consequence of a breach by the Employee of his obligations under this Agreement; (b) was already known to the Employee prior to receipt from the Bank; (c) is lawfully disclosed by the Bank to any third party without restriction; or (d) is disclosed by a third party to the Employee without restriction. This covenant not to compete shall not apply to the Employee if his employment is terminated by the Bank for Cause.
9. Confidential
Information.
Employee acknowledges
that as a result of employment with the Bank he has access to and knowledge of
confidential, trade secret and proprietary information of the Bank. In exchange for the consideration set forth
herein and for the consideration set forth in the Change-in-Control Agreement
contemporaneously executed, Employee agrees not to disclose to anyone inside or
outside the Bank or use for his own benefit or the benefit of others, any of
this information without the express written consent of the Bank. Employee acknowledges an unauthorized
disclosure or use of this information would be unfair and would cause the Bank
irreparable harm.
10. No Setoff; Mitigation; Attorneys' Fees. The Bank's obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Bank may have against the Employee or others without the Employee's consent. In no event shall the Employee be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Employee under any of the provisions of this Agreement. The Bank agrees to pay, to the full extent permitted by law, all legal fees and expenses which the Employee may reasonably incur as a result of any contest (regardless of the outcome thereof) by the Bank or others of the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereunder (including as a result of any payment pursuant to Section 6(b) of this Agreement), plus in each case interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code.
11. No Assignments.
(a) This Agreement is personal to each of the parties hereto, and neither 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 Bank will require any successor or assign (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of Bank, by an assumption agreement in form and substance satisfactory to the Employee in his sole discretion, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform it if no such succession or assignment had taken place. Failure of the Bank to obtain such an assumption agreement prior to the effective date of any such succession or assignment shall be a breach of this Agreement.
| (1) | For purposes of this Section 8, "Competitor" shall be defined as a business enterprise which competes with the Bank in offering the same products or services which, in the Bank's fiscal year ended prior to the Date of Termination generated 10% or more of the Bank's total revenues as reflected in the Bank's most recent annual audited financial statements. |
(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. If the Employee should die while any amounts would still be payable to the Employee hereunder if the Employee had continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to the Employee's devisee, legatee or other designee or if there is no such designee, to the Employee's estate.
12. Notice. For the purposes of this Agreement, notices and all other communications provided for in the 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, addressed to the respective addresses set forth on the first page of this Agreement (provided that all notices to the Bank shall be directed to the attention of the Chief Executive Officer of the Bank with a copy to the Secretary of the Bank), or to such other address as either party may have furnished to the other in writing in accordance herewith. Notices shall be effective upon receipt.
13. Amendments. No amendments or additions to this Agreement shall be binding unless in writing and signed by both parties, except as herein otherwise provided.
14. Paragraph Headings. The paragraph 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.
15. Entire Agreement/Waivers. This Agreement represents the entire agreement between the parties and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the Bank and the Employee with respect to the employment of the Employee by the Bank. No waiver of the terms of this Agreement shall be binding upon either party unless in writing, signed by both parties. The waiver or failure of either party to enforce the terms of this Agreement in one instance shall not constitute a waiver of that party's rights under this Agreement with respect to other violations.
16. 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.
17. Governing Law. This Agreement shall be governed by the laws of the United States to the extent applicable and otherwise by the laws of the State of South Dakota.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.
| EMPLOYEE | HOME FEDERAL SAVINGS BANK | ||
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| ▇▇▇▇▇ ▇. ▇▇▇▇▇ | By: | ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
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| Its: | Chairman, President and | ||
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| Chief Executive Officer | |||
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