EXHIBIT 10.3
Form of Severance Agreement for Executive Officers
CHANGE IN CONTROL SEVERANCE AGREEMENT
-------------------------------------
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT (the "Agreement") is made
and entered into as of this ____ day of _______ 2004 (the "Commencement Date"),
by and between HOME FEDERAL BANK (which, together with any successor thereto
which executes and delivers the assumption agreement provided for in Section
5(a) hereof or which otherwise becomes bound by all of the terms and provisions
of this Agreement by operation of law, is hereinafter referred to as the
"Savings Bank"), and __________________ (the "Employee").
WHEREAS, the Employee is currently serving as _____________________;
and
WHEREAS, the Board of Directors of the Savings Bank (the "Board")
recognizes that the possibility of a change in control of the Savings Bank or of
its holding company, Home Federal Bancorp, Inc. (the "Company"), may exist and
that such possibility, and the uncertainty and questions which it may raise
among management, may result in the departure or distraction of key management
to the detriment of the Savings Bank, the Company and its stockholders; and
WHEREAS, the Board believes it is in the best interests of the Savings
Bank to enter into this Agreement with the Employee in order to assure
continuity of management of the Savings Bank and to reinforce and encourage the
continued attention and dedication of the Employee to the Employee's assigned
duties without distraction in the face of potentially disruptive circumstances
arising from the possibility of a change in control of the Company and/or the
Savings Bank, although no such change is now contemplated; and
WHEREAS, the Board 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. Certain Definitions.
-------------------
(a) The term "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
Commencement 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 Commencement 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 hereinabove 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 "Commencement Date" means the date of this
Agreement.
(c) 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 Savings Bank, including but not limited to the Company.
(d) The term "Date of Termination" means the date upon which
the Employee ceases to serve as an employee of the Savings Bank.
(e) The term "Involuntary Termination" means the termination
of the employment of Employee (i) by the Savings Bank, 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 is 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 Savings
Bank's administrative offices as of the Commencement Date, except for reasonable
travel on Company or Savings Bank 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
2
the matters with respect to which such personnel are to report to the Employee,
other than as part of a Savings Bank- or 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 Savings Bank; (5) a material permanent
increase in the required hours of work or the workload of the Employee; or (6)
any purported termination of the Employee's employment, except for Termination
for Cause (and, if applicable, the requirements of Section 1(f) hereof), which
purported termination shall not be effective for purposes of this Agreement. The
term "Involuntary Termination" does not include Termination for Cause,
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 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. No act or failure to act by the
Employee shall be considered willful unless the Employee acted or failed to act
with an absence of good faith and without a reasonable belief that his action or
failure to act was in the best interest of the Company or the Savings Bank. 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
beginning on the Commencement Date, subject to earlier termination as provided
herein. Beginning on the first anniversary of the Commencement 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 prior
to such anniversary, the Board of Directors 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. Severance Benefits.
------------------
(a) If after a Change in Control, the Savings Bank shall
terminate the Employee's employment other than Termination for Cause, or
employment is terminated in the event of Involuntary Termination by the
Employee, within 12 months following a Change in Control, the Savings Bank shall
(i) pay the Employee his salary, including the pro rata portion of any incentive
award, through the Date of Termination; (ii) continue to pay, for the remaining
term of this
3
Agreement, for the life, health and disability coverage that is in effect with
respect to the Employee and his/her eligible dependents; and (iii) pay to the
Employee in a lump sum in cash, within 25 days after the later of the date of
such Change in Control or the Date of Termination, an amount equal to 299% of
the Employee's "base amount" as determined under Section 280G of the Code;
provided, however, that no payment shall be made under this Section 3(a) that
would cause the Savings Bank to be "undercapitalized" for purposes of 12 C.F.R.
565.4 or any successor provision.
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.
(b) The Employee shall not be required to mitigate the
amount of any payment or benefit provided for in this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment or benefit provided
for in this Agreement be reduced by any compensation earned by the Employee as
the result of employment by another employer, by retirement benefits after the
Date of Termination or otherwise. This Agreement does not constitute a contract
of employment or impose on the Company or the Savings Bank any obligation to
retain the Employee, to change the status of the Employee's employment, or to
change the Company's or the Savings Bank's policies regarding termination of
employment.
4. Attorneys' Fees. If the Employee is purportedly Terminated for Cause
and the Savings Bank denies payments and/or benefits under Section 3(a) of this
Agreement on the basis that the Employee experienced Termination for Cause, but
it is determined by a court of competent jurisdiction or by an arbitrator
pursuant to Section 12 that cause as contemplated by Section 1(f) of this
Agreement did not exist for termination of the Employee's employment, or if in
any event it is determined by any such court or arbitrator that the Savings Bank
has failed to make timely payment of any amounts or provision of any benefits
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 of employment or collecting such amounts or
benefits. Such reimbursement shall be in addition to all rights to which the
Employee is otherwise entitled under this Agreement.
5. 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 Savings Bank shall require any successor or
4
assign (whether direct or indirect, by purchase, merger, consolidation,
operation of law or otherwise) to all or substantially all of the business
and/or assets of the Savings Bank, 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 Savings Bank
would be required to perform it if no such succession or assignment had taken
place. Failure of the Savings Bank 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 Savings Bank in the same amount and on the same terms that Employee would be
entitled to hereunder if an event of Involuntary Termination occurred, in
addition to any payments and benefits to which the Employee is entitled under
Section 3 hereof. For purposes of implementing the provisions of this Section
5(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. In the event of the death of the Employee,
unless otherwise provided herein, all amounts payable hereunder shall be paid to
the Employee's devisee, legatee, or other designee or, if there be no such
designee, to the Employee's estate.
6. Deferred Payments. If following a termination of the Employee, the
aggregate payments to be made by the Savings Bank under this Agreement and all
other plans or arrangements maintained by the Company or any of the Consolidated
Subsidiaries would exceed the limitation on deductible compensation contained in
Section 162(m) of the Code in any calendar year, any such amounts in excess of
such limitation shall be mandatorily deferred with interest thereon at 8.0% per
annum to a calendar year such that the amount to be paid to the Employee in such
calendar year, including deferred amounts, does not exceed such limitation.
7. Required Provisions.
-------------------
(a) 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 Savings Bank'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 Savings Bank may in
its discretion (i) pay the Employee all or part of the payments under this
Agreement that were withheld while its obligations under this Agreement were
suspended and (ii) reinstate in whole or in part any of its obligations which
were suspended.
(b) 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 Savings Bank under this Agreement shall
terminate as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.
5
(c) 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.
(d) 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.
(e) Any payments made to the Employee 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. Delivery of Notices. For the purposes of this Agreement, all notices
and other communications to any party hereto shall be in writing and shall be
deemed to have been duly given when delivered or sent by certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Employee: _________________________
At the address last appearing
on the personnel records of
the Employee
If to the Savings Bank: Home Federal Bank
000 00xx Xxxxxx Xxxxx
Xxxxx, Xxxxx 00000
Attention: Secretary
or to such other address as such party may have furnished to the other in
writing in accordance herewith, except that a notice of change of address shall
be effective only upon receipt.
9. Amendments. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein otherwise
provided.
10. 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.
6
11. 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.
12. Governing Law. This Agreement shall be governed by the laws of the
State of Idaho to the extent that federal law does not govern.
13. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by binding
arbitration, conducted before a panel of three arbitrators in a location
selected by the Employee within 100 miles of such Employee's job location with
the Savings Bank, in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrators' award in
any court having jurisdiction.
* * * * *
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
---------------------------- --------------------------------------
By: Xxxxxx X. Xxxxxxx
---------------------------- Its: President and Chief Executive Officer
EMPLOYEE
--------------------------------------
--------------------------------------
--------------------------------------
7
