AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.7
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
This
Amended and Restated Employment Agreement, is made and dated as of July 24,
2007, by and among HomeFederal Bank, a state chartered commercial bank
(“Employer”), Home Federal Bancorp, an Indiana corporation, which owns all of
the capital stock of the Employer (the “Holding Company”), and Xxxx X. Xxxxxx, a
resident of Xxxxxxxx County, Indiana (“Employee”), but effective as of July 8,
2005.
This
Agreement amends and restates the prior Employment Agreement among the Employer,
the Holding Company and the Employee dated July 8, 2005 (the “Prior
Agreement”). It has been amended and restated for compliance with the
final regulations under Section 409A of the Internal Revenue Code of 1986,
as
amended.
WITNESSETH
WHEREAS,
Employee is employed by Employer as an Executive Vice President and Chief
Financial Officer and has made valuable contributions to the profitability
and
financial strength of Employer;
WHEREAS,
Employer desires to encourage Employee to continue to make valuable
contributions to Employer’s business operations and not to seek or accept
employment elsewhere;
WHEREAS,
Employee desires to be assured of a secure minimum compensation from Employer
for his services over a defined term;
WHEREAS,
Employer desires to assure the continued services of Employee on behalf of
Employer on an objective and impartial basis and without distraction or conflict
of interest in the event of an attempt by any person to obtain control of
Employer or of the Holding Company.
WHEREAS,
Employer recognizes that when faced with a proposal for a change of control
of
Employer, Employee will have a significant role in helping the Board of
Directors assess the options and advising the Board of Directors on what is
in
the best interests of Employer and its shareholders, and it is necessary for
Employee to be able to provide this advice and counsel without being influenced
by the uncertainties of his own situation;
WHEREAS,
Employer desires to provide fair and reasonable benefits to Employee on the
terms and subject to the conditions set forth in this Agreement;
WHEREAS,
Employer desires reasonable protection of its confidential business and customer
information which it has developed over the years at substantial expense and
assurance that Employee will not compete with Employer for a reasonable period
of time after termination of his employment with Employer, except as otherwise
provided herein.
NOW,
THEREFORE, in consideration of these premises, the mutual covenants and
undertakings herein contained and the continued employment of Employee by
Employer as its Executive Vice President and Chief Financial Officer, Employer
and Employee, each intending to be legally bound, covenant and agree as
follows:
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1. Upon
the terms and subject to the conditions set forth in this Agreement, Employer
employs Employee as Executive Vice President and Chief Financial Officer of
Employer, and Employee accepts such employment.
2. Employee
agrees to serve as Executive Vice President and Chief Financial Officer of
Employer and to perform such duties in that office as may reasonably be assigned
to him by Employer’s Board of Directors; provided, however that such duties
shall be performed in or from the offices of Employer currently located at
Columbus, Indiana and Indianapolis, Indiana. Employee shall not be
required to be absent from the location of the offices of Employer at which
he
works on travel status or otherwise more than 45 days in any calendar
year. Although while employed by Employer, Employee shall devote
substantially all his business time and efforts to Employer’s business and shall
not engage in any other related business, Employee may use his discretion in
fixing his hours and schedule of work consistent with the proper discharge
of
his duties.
3. The
term of this Agreement shall begin on July 8, 2005 (the “Effective Date”) and
shall end on the date which is three years following such date; provided,
however, that such term shall be extended for an additional year on each
anniversary of the Effective Date if Employer’s Board of Directors determines by
resolution with respect to each such annual extension that the
performance of the Employer has met the Board’s requirements and standards and
that this Agreement should be extended for another
year. Notwithstanding the foregoing, if either party hereto gives
written notice to the other party not to so extend prior to such anniversary,
or
if the Employer’s Board of Directors does not adopt the resolution
authorizing annual extension of the contract with respect to any annual period
during the term of this Agreement, no further automatic extension shall occur
and the term of this Agreement shall end two years subsequent to the anniversary
as of which the notice not to or failure to extend for an additional year occurs
(such term including any extension thereof shall herein be referred to as the
“Term”). Notwithstanding the foregoing, this Agreement shall
automatically terminate (and the Term of this Agreement shall thereupon end)
without notice when Employee attains 65 years of age.
4. Employee
shall receive an annual salary of $193,000 effective April 1, 2007 (“Base
Compensation”), payable at regular intervals in accordance with Employer’s
normal payroll practices now or hereafter in effect. Employer may
consider and declare from time to time increases in the salary it pays Employee
and thereby increases in his Base Compensation. Prior to a Change of
Control, Employer may also declare decreases in the salary it pays Employee
if
the operating results of Employer are significantly less favorable than those
for the fiscal year ending December 31, 2004, and Employer makes similar
decreases in the salary it pays to other executive officers of Employer. After
a
Change in Control, Employer shall consider and declare salary increases based
upon the following standards:
Inflation;
Adjustments
to the salaries of other senior management personnel; and
Past
performance of Employee and the contribution which Employee makes to the
business and profits of Employer during the Term.
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Any
and
all increases or decreases in Employee’s salary pursuant to this section shall
cause the level of Base Compensation to be increased or decreased by the amount
of each such increase or decrease for purposes of this Agreement. The
increased or decreased level of Base Compensation as provided in this section
shall become the level of Base Compensation for the remainder of the Term of
this Agreement until there is a further increase or decrease in Base
Compensation as provided herein.
5. So
long as Employee is employed by Employer pursuant to this Agreement, he shall
be
included as a participant in all present and future employee benefit,
retirement, and compensation plans generally available to employees of Employer,
consistent with his Base Compensation and his position as an Executive Vice
President of Employer, including, without limitation, Employer’s Pension Plan,
401(k) Plan, Stock Option Plan, Long Term Incentive Plan, and hospitalization,
major medical, disability and group life insurance plans, each of which Employer
agrees to continue in effect on terms no less favorable than those currently
in
effect as of the date hereof (as permitted by law) during the Term of this
Agreement unless prior to a Change of Control the operating results of Employer
are significantly less favorable than those for the fiscal year ended December
31, 2004, and unless (either before or after a Change of Control) changes in
the
accounting or tax treatment of such plans would adversely affect Employer’s
operating results or financial condition in a material way, and the Board of
Directors of Employer concludes that modifications to such plans need to be
made
to avoid such adverse effects.
6. So
long as Employee is employed by Employer pursuant to this Agreement, Employee
shall receive reimbursement from Employer for all reasonable business expenses
incurred in the course of his employment by Employer, upon submission to
Employer of written vouchers and statements for reimbursement. So long as
Employee is employed by Employer pursuant to the terms of this Agreement,
Employer shall continue in effect reasonable vacation policies applicable to
Employee.
7. Subject
to the respective continuing obligations of the parties, including but not
limited to those set forth in subsections 9(A) and 9(B) hereof, Employee’s
employment by Employer may be terminated prior to the expiration of the Term
of
this Agreement as follows:
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(A)
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Employer,
by action of its Board of Directors and upon written notice to Employee,
may terminate Employee’s employment with Employer immediately for
cause. For purposes of this subsection 7(A), “cause” shall be
defined as (i) personal dishonesty, (ii) incompetence, (iii) willful
misconduct, (iv) breach of fiduciary duty involving personal profit,
(v)
intentional failure to perform stated duties, (vi) willful violation
of
any law, rule, or regulation (other than traffic violations or similar
offenses) or final cease-and-desist order, or (vii) any material
breach of
any term, condition or covenant of this
Agreement.
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(B)
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Employer,
by action of its Board of Directors, may terminate Employee’s employment
with Employer without cause at any
time.
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(C)
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Employee,
by written notice to Employer, may terminate his employment with
Employer
immediately for cause. For purposes of this subsection 7(C),
“cause”
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shall
be
defined as (i) any action by Employer’s Board of Directors to remove the
Employee as an Executive Vice President of Employer, except where the Employer’s
Board of Directors properly acts to remove Employee from such office for “cause”
as defined in subsection 7(A) hereof, (ii) any action by Employer’s Board of
Directors to materially limit, increase, or modify Employee’s duties and/or
authority as an Executive Vice President of Employer (including his authority,
subject to corporate controls no more restrictive than those in effect on the
date hereof, to hire and discharge employees who are not bona fide officers
of
Employer), (iii) any failure of Employer to obtain the assumption of the
obligation to perform this Agreement by any successor or the reaffirmation
of
such obligation by Employer, as contemplated in section 19 hereof; or (iv)
any
intentional breach by Employer of a term, condition or covenant of this
Agreement.
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(D)
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Employee,
upon thirty (30) days written notice to Employer, may terminate his
employment with Employer without
cause.
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(E)
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Employee’s
employment with Employer shall terminate in the event of Employee’s death
or disability. For purposes hereof, “disability” shall be
defined as Employee’s inability by reason of illness or other physical or
mental incapacity to perform the duties required by his employment
for any
consecutive One Hundred Eighty (180) day period, provided that notice
of
any termination by Employer because of Employee’s “disability” shall have
been given to Employee prior to the full resumption by him of the
performance of such duties.
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8. In
the event of termination of Employee’s employment with Employer pursuant to
section 7 hereof other than simultaneously with or following a Change of Control
(as hereinafter defined), compensation shall continue to be paid by Employer
to
Employee as follows:
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(A)
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In
the event of termination pursuant to subsection 7(A) or 7(D), compensation
provided for herein (including Base Compensation) shall continue
to be
paid, and Employee shall continue to participate in the employee
benefit,
retirement, and compensation plans and other perquisites as provided
in
sections 5 and 6 hereof, through the date of termination specified
in the
notice of termination. Any benefits payable under insurance,
health, retirement and bonus plans as a result of Employee’s participation
in such plans through such date shall be paid when due under those
plans. The date of termination specified in any notice of
termination pursuant to Subsection 7(A) shall be no later than the
last
business day of the month in which such notice is provided to
Employee.
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(B)
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In
the event of termination pursuant to subsection 7(B) or 7(C), compensation
provided for herein (including Base Compensation) shall continue
to be
paid, and Employee shall continue to participate in the employee
benefit,
retirement, and compensation plans and other perquisites as provided
in
Sections 5 and 6 hereof, through the date of termination specified
in the
notice of termination. Any benefits payable under insurance,
health, retirement and bonus plans as a result of Employee’s participation
in such plans through such date shall be paid when
due
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under
those plans. In addition, Employee shall be entitled to continue to
receive from Employer his Base Compensation at the rates in effect at the time
of termination for the remaining Term of the Agreement. In addition,
during such periods, Employer will maintain in full force and effect for the
continued benefit of Employee each employee welfare benefit plan and each
employee pension benefit plan (as such terms are defined in the Employee
Retirement Income Security Act of 1974, as amended) in which Employee
was entitled to participate immediately prior to the date of his termination,
unless an essentially equivalent and no less favorable benefit is provided
by a
subsequent employer of Employee. If the terms of any employee welfare
benefit plan or employee pension benefit plan of Employer do not permit
continued participation by Employee, Employer will arrange to provide to
Employee a benefit substantially similar to, and no less favorable than, the
benefit he was entitled to receive under such plan at the end of the period
of
coverage.
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(C)
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In
the event of termination pursuant to subsection 7(E) (other than
simultaneously with or following a Change in Control (as hereinafter
defined), compensation provided for herein (including Base Compensation)
shall continue to be paid, and Employee shall continue to participate
in
the employee benefit, retirement, and compensation plans and other
perquisites as provided in sections 5 and 6 hereof, (i) in the event
of
Employee’s death, through the date of death, or (ii) in the event of
Employee’s disability, through the date of proper notice of disability as
required by subsection 7(E). Any benefits payable under
insurance, health, retirement and bonus plans as a result of Employer’s
participation in such plans through such date shall be paid when
due under
those plans.
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(D)
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In
the event there is a Change in Control during the Term, Employer
will
permit Employee or his personal representative(s) or heirs to require
Employer, upon written request, as of the effective date of the Change
in
Control, to purchase all outstanding stock options previously granted
to
Employee under any stock option plan of Employer or any Holding Company
of
Employer then in effect whether or not such options are then exercisable
or have terminated at a cash purchase price equal to the amount by
which
the aggregate “fair market value” of the shares subject to such options
exceeds the aggregate option price for such shares. For
purposes of this Agreement, the term “fair market value” shall mean the
higher of (1) the average of the highest asked prices for Employer
or
Holding Company shares in the over-the-counter market as reported
on the
NASDAQ system if the shares are traded on such system for the 30
business
days preceding such termination, or (2) the average per share price
actually paid for the most highly priced 1% of the Employer or Holding
Company shares acquired in connection with the Change of Control
by any
person or group acquiring such
control.
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(E)
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In
the event there is a Change of Control during the Term and without
regard
to whether the Employee’s employment is terminated in connection with the
Change of Control, this Agreement shall terminate upon payment to
the
Employee of a lump sum payment equal to three (3) times his Base
Compensation, any amounts owed to Employee under Section 8(D), and
the
continued payment to Employee
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through
the date of termination of this Agreement of all compensation and benefits
provided for in Sections 5 and 6 hereof. Employer shall pay to Employee such
amounts no later than the effective date of the Change in
Control. For purposes of this Agreement, a “Change of Control” shall
mean any of the following:
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(1)
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a
change in the ownership of the Employer or the Holding Company, which
shall occur on the date that any one person, or more than one person
acting as a group, acquires ownership of stock of the Employer or
the
Holding Company that, together with stock held by such person or
group,
constitutes more than fifty percent (50%) of the total fair market
value
or total voting power of the stock of the Employer or the Holding
Company. However, if any one person, or more than one person
acting as a group, is considered to own more than fifty percent (50%)
of
the total fair market value or total voting power of the stock of
the
Employer or the Holding Company, the acquisition of additional stock
by
the same person or persons is not considered to cause a change in
the
ownership of the Employer or the Holding Company (or to cause a change
in
the effective control of the Employer or the Holding Company (within
the
meaning of subsection (2)). An increase in the percentage of
stock owned by any one person, or persons acting as a group, as a
result
of a transaction in which the Employer or the Holding Company acquires
its
stock in exchange for property will be treated as an acquisition
of stock
for purposes of this subsection. This subsection applies only
when there is a transfer of stock of the Employer or the Holding
Company
(or issuance of stock of the Employer or the Holding Company) and
stock in
the Employer or the Holding Company remains outstanding after the
transaction.
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(2)
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a
change in the effective control of the Employer or the Holding Company,
which shall occur only on either of the following
dates:
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(i)
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the
date any one person, or more than one person acting as a group acquires
(or has acquired during the 12 month period ending on the date of
the most
recent acquisition by such person or persons) ownership of stock
of the
Employer or the Holding Company possessing thirty percent (30%) or
more of
the total voting power of the stock of the Employer or the Holding
Company.
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(ii)
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the
date a majority of members of the Holding Company’s board of directors is
replaced during any 12 month period by directors whose appointment
or
election is not endorsed by a majority of the members of the Holding
Company’s board of directors before the date of the appointment or
election; provided, however, that this provision shall not apply
if
another corporation is a majority shareholder of the Holding
Company.
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If
any one person, or more than one person acting as a group, is considered
to effectively control the Employer or the Holding Company, the
acquisition of additional control of the Employer or the Holding
Company
by the same person or persons is not considered to cause a change
in the
effective control of the Employer or the Holding Company (or to
cause a
change in the ownership of the Employer or the Holding Company
within the
meaning of subsection (1) of this
section).
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(3)
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a
change in the ownership of a substantial portion of the Employer’s assets,
which shall occur on the date that any one person, or more than one
person
acting as a group, acquires (or has acquired during the 12 month
period
ending on the date of the most recent acquisition by such person
or
persons) assets from the Employer that have a total gross fair market
value equal to or more than forty percent (40%) of the total gross
fair
market value of all of the assets of the Employer immediately before
such
acquisition or acquisitions. For this purpose, gross fair
market value means the value of the assets of the Employer, or the
value
of the assets being disposed of, determined without regard to any
liabilities associated with such assets. No change in control
event occurs under this subsection (3) when there is a transfer to
an
entity that is controlled by the shareholders of the Employer immediately
after the transfer. A transfer of assets by the Employer is not
treated as a change in the ownership of such assets if the assets
are
transferred to –
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(i)
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a
shareholder of the Employer (immediately before the asset transfer)
in
exchange for or with respect to its
stock;
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(ii)
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an
entity, 50 percent or more of the total value or voting power of
which is
owned, directly or indirectly, by the
Employer.
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(iii)
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a
person, or more than one person acting as a group, that owns, directly
or
indirectly, 50 percent or more of the total value or voting power
of all
the outstanding stock of the Employer;
or
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(iv)
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an
entity, at least 50 percent of the total value or voting power of
which is
owned, directly or indirectly, by a person described in paragraph
(iii).
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For
purposes of this subsection (3) and except as otherwise provided in paragraph
(i) above, a person’s status is determined immediately after the transfer of the
assets. For purposes of this section, persons will not be considered
to be acting as a group solely because they purchase or own stock of the same
corporation at the same time, or as a result of the same public
offering. However, persons will be considered to be acting as a group
if they are owners of a corporation that enters into a merger, consolidation,
purchase or acquisition of stock, or similar business transaction with the
Employer. If a person, including an entity, owns
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stock
in
both corporations that enter into a merger, consolidation, purchase or
acquisition of stock, or similar transaction, such shareholder is considered
to
be acting as a group with other shareholders only with respect to the ownership
in that corporation before the transaction giving rise to the change and not
with respect to the ownership interest in the other corporation.
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(F)
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To
the extent the Employee is a “specified employee” (as defined below),
payments due to the Employee under this Section 8 (other than those
provided for in Sections 8(D) and 8(E)) shall begin no sooner than
six
months after the Employee’s separation from service; provided, however,
that any payments not made during the six month period described
in this
Section 8(F) shall be made in a single lump sum as soon as
administratively practicable after the expiration of such six month
period; provided, further, that the six month delay required under
this
Section 8(F) shall not apply to the portion of any payment resulting
from the Employee’s “involuntary separation from service” (as defined in
Treasury Reg. Section 1.409A-1(n) and including a “separation from
service for good reason,” as defined in Treasury Reg.
Section 1.409A-1(n)(2)) that (i) is payable no later than the last
day of the second year following the year in which the separation
from
service occurs, and (ii) does not exceed two times the lesser of
(1) the
Employee’s annualized compensation for the year prior to the year in which
the separation from service occurs, or (2) the dollar limit described
in
Section 401(a)(17) of the
Code.
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To
the
extent any life, health, disability or other welfare benefit coverage provided
to the Employee under this Section 8 would be taxable to the Employee, the
taxable amount of such coverage shall not exceed the applicable dollar amount
under Section 402(g)(1)(B) of the Code determined as of the year in which
the Employee’s separation from service occurs. The intent of the
foregoing sentence is to permit the Holding Company and the Employer to treat
the provision of such benefits as a limited payment under Treasury Reg.
Section 1.409A-1(a)(9)(v)(D) so as to avoid application of the six month
delay rule for specified employees. For purposes of this
Section 8, any reference to severance of employment or termination of
employment shall mean a “separation from service” as defined in Treasury Reg.
Section 1.409A-1(h).
For
purposes of this Agreement, the term “specified employee” shall have the meaning
set forth in Treasury Reg. Section 1.409A-1(i) and shall include, without
limitation, (1) an officer of the Employer or the Holding Company having annual
compensation greater than $130,000 (as adjusted for inflation under the Code),
(2) a five percent owner of the Employer or the Holding Company, or (3) a one
percent owner of the Employer or the Holding Company having annual compensation
of more than $150,000. The determination of whether the Employee is a
“specified employee” shall be made by the Employer in good faith applying the
applicable Treasury regulations.
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9. In
order to induce Employer to enter into this Agreement, Employee hereby agrees
as
follows:
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(A)
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While
Employee is employed by Employer and for a period of three years
after
termination of such employment for reasons other than those set forth
in
subsections 7(B) or (C) of this Agreement, Employee shall not divulge
or
furnish any trade secrets (as defined in IND. CODE § 24-2-3-2) of
Employer or any confidential information acquired by him while employed
by
Employer concerning the policies, plans, procedures or customers
of
Employer to any person, firm or corporation, other than Employer
or upon
its written request, or use any such trade secret or confidential
information directly or indirectly for Employee’s own benefit or for the
benefit of any person, firm or corporation other than Employer, since
such
trade secrets and confidential information are confidential and shall
at
all times remain the property of
Employer.
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(B)
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If
Employee’s employment by Employer is terminated for reasons other than
those set forth in subsections 7(B) or (C) of this Agreement, Employee
will turn over immediately thereafter to Employer all business
correspondence, letters, papers, reports, customers’ lists, financial
statements, credit reports or other confidential information or documents
of Employer or its affiliates in the possession or control of Employee,
all of which writings are and will continue to be the sole and exclusive
property of Employer or its
affiliates.
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If
Employee’s employment by Employer is terminated during the Term of this
Agreement for reasons set forth in subsections 7(B) or (C) of this Agreement,
Employee shall have no obligations to Employer with respect to trade secrets
or
confidential information under this section 9.
10. Any
termination of Employee’s employment with Employer as contemplated by section 7
hereof, except in the circumstances of Employee’s death, shall be communicated
by written “Notice of Termination” by the terminating party to the
other party hereto. Any “Notice of Termination” pursuant
to subsections 7(A), 7(C) or 7(E) shall indicate the specific provisions of
this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for such termination.
11. If
Employee is suspended and/or temporarily prohibited from participating in the
conduct of Employer’s affairs by a notice served under section 8(e)(3) or (g)(1)
of the Federal Deposit Insurance Act (12 U.S.C. § 1818(e)(3) and (g)(1)),
Employer’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, Employer may in its discretion (i) pay 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.
12. If
Employee is removed and/or permanently prohibited from participating in the
conduct of Employer’s affairs by an order issued under section 8(e)(4) or (g)(1)
of the Federal Deposit Insurance Act (12 U.S.C. § 1818(e)(4) or (g)(1)),
all obligations of Employer under this
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Agreement
shall terminate as of the effective date of the order, but vested rights of
the
parties to the Agreement shall not be affected. If Employer is in
default (as defined in section 3(x)(1) of the Federal Deposit Insurance Act),
all obligations under this Agreement shall terminate as of the date of default,
but this provision shall not affect any vested rights of Employer or
Employee.
13. All
obligations under this Agreement may be terminated except to the extent
determined that the continuation of the Agreement is necessary for the continued
operation of Employer: (i) by the Director of the Indiana Department
of Financial Institutions, or his designee (the “Director”), at the time the
Federal Deposit Insurance Corporation enters into an agreement to provide
assistance to or on behalf of Employer under the authority contained in Section
13(c) of the Federal Deposit Insurance Act; or (ii) by the Director at the
time
the Director approves a supervisory merger to resolve problems related to
operation of Employer or when Employer is determined by the Director to be
in an
unsafe and unsound condition. Any rights of the parties that have
already vested, however, shall not be affected by such action.
14. Anything
in this Agreement to the contrary notwithstanding, in the event that the
Employer’s independent public accountants determine that any payment by the
Employer to or for the benefit of the Employee, whether paid or payable pursuant
to the terms of this Agreement, would be non-deductible by the Employer for
federal income tax purposes because of Section 280G of the Internal Revenue
Code
of 1986, as amended (the “Code”), then the amount payable to or for the benefit
of the Employee pursuant to this Agreement shall be reduced (but not below
zero)
to the Reduced Amount. For purposes of this section 14, the “Reduced
Amount” shall be the amount that maximizes the amount payable without causing
the payment to be non-deductible by the Employer because of Section 280G of
the
Code. In the event the Employee is entitled to receive payments
following a Change in Control under a Supplemental Retirement Agreement with
the
Employer which payments, together with the amounts payable to the Employee
under
this Agreement would result in a tax under §4999 of the Code, the amounts
payable to the Employee pursuant to this Agreement shall be reduced first,
before any reduction is made in payments under the Supplemental Retirement
Agreement, to the extent necessary to avoid a tax imposed under §4999 of the
Code.
15. If
a dispute arises regarding the termination of Employee pursuant to section
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hereof or as to the interpretation or enforcement of this Agreement and Employee
obtains a final judgment in his favor in a court of competent jurisdiction
or
his claim is settled by Employer prior to the rendering of a judgment by such
a
court, all reasonable legal fees and expenses incurred by Employee in contesting
or disputing any such termination or seeking to obtain or enforce any right
or
benefit provided for in this Agreement or otherwise pursuing his claim shall
be
paid by Employer, to the extent permitted by law.
16. Should
Employee die after termination of his employment with Employer while any amounts
are payable to him hereunder, this Agreement shall inure to the benefit of
and
be enforceable by Employee’s executors, administrators, heirs, distributees,
devisees and legatees and all amounts payable hereunder shall be paid in
accordance with the terms of this Agreement to Employee’s devisee, legatee or
other designee or, if there is no such designee, to his estate.
17. For
purposes of this Agreement, notices and all other communications provided for
herein shall be in writing and shall be deemed to have been given when delivered
or mailed
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by
United
States registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
|
If
to Employee:
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Xxxx
X. Xxxxxx
|
|
|
00000
Xxxxxxxxx Xxx
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||
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Xxxxxxx,
XX 00000
|
||
|
If
to Employer:
|
HomeFederal
Bank
|
|
|
Attn:
CEO
|
||
|
000
Xxxxxxxxxx Xxxxxx
|
||
|
Xxxxxxxx,
XX 00000
|
or
to
such address as either party hereto may have furnished to the other party in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
18. The
validity, interpretation, and performance of this Agreement shall be governed
by
the laws of the State of Indiana.
19. Employer
shall require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or
assets of Employer, by agreement in form and substance satisfactory to Employee
to expressly assume and agree to perform this Agreement in the same manner
and
same extent that Employer would be required to perform it if no such succession
had taken place. Failure of Employer to obtain such agreement prior
to the effectiveness of any such succession shall be a material intentional
breach of this Agreement and shall entitle Employee to terminate his employment
with Employer pursuant to subsection 7(C) hereof. As used in this Agreement,
“Employer” shall mean Employer as hereinbefore defined and any successor to its
business or assets as aforesaid.
20. No
provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing signed by Employee
and
Employer. No waiver by either party hereto at any time of any breach
by the other party hereto of, or compliance with, any condition or provision
of
this Agreement to be performed by such other party shall be deemed a waiver
of
dissimilar provisions or conditions at the same or any prior subsequent
time. No agreements or representation, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement.
21. The
invalidity or unenforceability of any provisions of this Agreement shall not
affect the validity or enforceability of any other provisions of this Agreement
which shall remain in full force and effect.
22. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the same
agreement.
23. This
Agreement is personal in nature and neither party hereto shall, without consent
of the other, assign or transfer this Agreement or any rights or obligations
hereunder
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except
as
provided in section 16 and section 19 above. Without limiting the
foregoing, Employee’s right to receive compensation hereunder shall not be
assignable or transferable, whether by pledge, creation of a security interest
or otherwise, other than a transfer by his will or by the laws of descent or
distribution as set forth in section 16 hereof, and in the event of any
attempted assignment or transfer contrary to this paragraph, Employer shall
have
no liability to pay any amounts so attempted to be assigned or
transferred.
24. The
Holding Company agrees that if it shall be determined for any reason that any
obligation on the part of Employer to continue to make any payments due under
this Agreement to Employee or to satisfy any other obligation under this
Agreement for the benefit of Employee is unenforceable for any reason, the
Holding Company agrees to honor the terms of this Agreement and continue to
make
any such payments due hereunder to Employee or to satisfy any such obligation
pursuant to the terms of this Agreement, as though it were the Employer
hereunder.
IN
WITNESS WHEREOF, the parties have caused this Amended and Restated Employment
Agreement to be executed and delivered as of the day and year first above set
forth.
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HOMEFEDERAL
BANK
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|||
|
By:
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/s/ Xxxx X. Xxxxx, Xx. | ||
|
Xxxx
X. Xxxxx, Xx., President and Chief Executive Officer
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|||
|
“Employer”
|
|||
| /s/ Xxxx X. Xxxxxx | |||
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Xxxx
X. Xxxxxx
|
|||
|
“Employee”
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|||
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By:
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/s/ Xxxx X. Xxxxx, Xx. | ||
|
Xxxx
X. Xxxxx, Xx., President and Chief Executive Officer
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|||
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“Holding
Company”
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|||
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