EXHIBIT 10.9
HOME FEDERAL SAVINGS BANK
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of this
8th day of April, 1998, 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. X. Xxx 0000, Xxxxx Xxxxx, Xxxxx
Xxxxxx 00000-0000 and Xxxx X. Xxxxxxxxx (the "Employee"), 0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxxx 00000.
RECITALS
A. The Employee is currently serving as Senior Vice President/Trust
Officer.
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/Trust Officer. As Senior Vice President, Employee shall have all such
authority, powers, duties and responsibilities customarily afforded to the
office of Senior Vice President/Trust Officer. 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 THOUSAND SIX HUNDRED AND 00/100 DOLLARS ($90,600) 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.
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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.
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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.
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(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.
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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.
(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
/s/ Xxxx X. Xxxxxxxxx /s/ Xxxxxx X. Xxxx
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Xxxx X. Xxxxxxxxx By: Xxxxxx X. Xxxx
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Its: Chairman, President and
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Chief Executive Officer
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