Exhibit 10.2(a)
AGREEMENT
AGREEMENT, dated this 21st day of March 1996, between Home Federal
Corporation (the "Corporation"), a Maryland corporation and Xxxxxxx X. Xxxxxxx,
Xx. (the "Executive").
WITNESSETH
WHEREAS, the Executive is presently an officer of the Corporation and Home
Federal Savings Bank (the "Savings Bank") (together, the "Employers");
WHEREAS, the Employers desire to be ensured of the Executive's continued
active participation in the business of the Employers and currently have a joint
agreement with the Executive dated July 1, 1995;
WHEREAS, in accordance with Office of Thrift Supervision ("OTS") Regulatory
Bulletin 27a, the Corporation and the Savings Bank desire to enter into separate
agreements with the Executive with respect to his employment by each of the
Employers; and
WHEREAS, in order to induce the Executive to remain in the employ of the
Employers and in consideration of the Executive's agreeing to remain in the
employ of the Employers, the parties desire to specify the severance benefits
which shall be due the Executive by the Corporation in the event that his
employment with the Corporation is terminated under specified circumstances.
NOW THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereby agree as follows:
1. Definitions. The following words and terms shall have the meanings
set forth below for the purposes of this Agreement:
(a) Base Salary. "Base Salary" shall have the meaning set forth in
Section 3(a) hereof.
(b) Cause. Termination of the Executive's employment for "Cause" shall
mean termination because of personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses) or final
cease-and-desist order or material breach of any provision of this Agreement.
(c) Change in Control of the Corporation. "Change in Control of the
Corporation" shall mean a change in control of a nature that would be required
to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended ("Exchange
Act"), or any successor thereto, whether or not the Corporation is registered
under Exchange Act; provided that, without limitation, such a change in
control shall be deemed to have occurred if (i) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Corporation representing 25% or more of the
combined voting power of the Corporation's then outstanding securities; or (ii)
during any period of two consecutive years, individuals who at the beginning of
such period constitute the Board of Directors of the Corporation cease for any
reason to constitute at least a majority thereof unless the election, or the
nomination for election by stockholders, of each new director was approved by a
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period.
(d) Code. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(e) Date of Termination. "Date of Termination" shall mean (i) if the
Executive's employment is terminated for Cause or for Disability, the date
specified in the Notice of Termination, and (ii) if the Executive's employment
is terminated for any other reason, the date on which a Notice of Termination is
given or as specified in such Notice.
(f) Disability. Termination by the Corporation of the Executive's
employment based on "Disability" shall mean termination because of any physical
or mental impairment which qualifies the Executive for disability benefits under
the applicable long-term disability plan maintained by the Employers or any
subsidiary or, if no such plan applies, which would qualify the Executive for
disability benefits under the Federal Social Security System.
(g) Good Reason. Termination by the Executive of the Executive's
employment for "Good Reason" shall mean termination by the Executive within one
year following a Change in Control of the Corporation based on:
(i) Without the Executive's express written consent, a
reduction by either of the Employers in the
Executive's Base Salary as the same may be
increased from time to time or, except to the
extent permitted by Section 3(b) hereof, a
reduction in the package of fringe benefits
provided to the Executive, taken as a whole;
(ii) The principal executive office of either of the
Employers is relocated outside of the Hagerstown,
Maryland area or, without the Executive's express
written consent, either of the Employers require
the Executive to be based anywhere other than an
area in which the Employers' principal executive
office is located, except for required travel on
business of the Employers to an extent
substantially consistent with the Executive's
present business travel obligations;
(iii) Any purported termination of the Executive's
employment for Cause, Disability or Retirement
which is not effected pursuant to a Notice of
Termination satisfying the requirements of
paragraph (i) below; or
(iv) The failure by the Corporation to obtain the
assumption of and agreement to perform this
Agreement by any successor as contemplated in
Section 9 hereof.
(h) IRS. IRS shall mean the Internal Revenue Service.
(i) Notice of Termination. Any purported termination of the Executive's
employment by the Corporation for any reason, including without limitation for
Cause, Disability or Retirement, or by the Executive for any reason, including
without limitation for Good Reason, shall be communicated by written "Notice of
Termination" to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a dated notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so indicated, (iii)
specifies a Date of Termination, which shall be not less than thirty (30) nor
more than ninety (90) days after such Notice of Termination is given, except in
the case of the Corporation's termination of Executive's employment for Cause,
which shall be effective immediately; and (iv) is given in the manner specified
in Section 10 hereof.
(j) Retirement. Termination by the Employers of the Executive's
employment based on "Retirement" shall mean voluntary termination by the
Executive in accordance with the Employers' retirement policies, including early
retirement, generally applicable to their salaried employees.
2. Term of Employment.
(a) The Corporation hereby employs the Executive as President and Chief
Executive Officer and Executive hereby accepts said employment and agrees to
render such services to the Corporation on the terms and conditions set forth in
this Agreement. The term of employment under this Agreement shall be for three
years, commencing on the date of this Agreement and, upon approval of the Board
of Directors of the Corporation, shall extend for an additional year on each
annual anniversary of the date of this Agreement such that at any time the
remaining term of this Agreement shall be from two to three years. Prior to the
first annual anniversary of the date of this Agreement and each annual
anniversary thereafter, the Board of Directors of the Corporation shall consider
and review (with appropriate corporate documentation thereof, and after taking
into account all relevant factors, including the Executive's performance
hereunder) extension of the term under this Agreement, and the term shall
continue to extend each year if the Board of Directors approves such extension
unless the Executive gives written notice to the Employers of the Executive's
election not to extend the term, with such written notice to be given not less
than thirty (30) days prior to any such anniversary date. If the Board of
Directors elects not to extend the term, it shall give written notice of such
decision to the Executive not less than thirty (30) days prior to any such
anniversary date. If any party gives timely notice that the term will not be
extended as of any annual anniversary date, then this Agreement shall terminate
at the conclusion of its remaining term. References herein to the term of this
Agreement shall refer both to the initial term and successive terms.
(b) During the term of this Agreement, the Executive shall perform such
executive services for the Corporation as may be consistent with his titles and
from time to time assigned to him by the Corporation's Board of Directors.
3. Compensation and Benefits.
(a) The Employers shall compensate and pay Executive for his services
during the term of this Agreement at a minimum base salary of $111,000 per year
("Base Salary"), which may be increased from time to time in such amounts as may
be determined by the Boards of Directors of the Employers and may not be
decreased without the Executive's express written consent. For purposes hereof,
Base Salary shall include any fees received for serving as a director of the
Employers.
(b) During the term of the Agreement, Executive shall be entitled to
participate in and receive the benefits of any pension or other retirement
benefit plan, profit sharing, stock option, employee stock ownership, or other
plans, benefits and privileges given to employees and executives of the
Employers, to the extent commensurate with his then duties and responsibilities,
as fixed by the Boards of Directors of the Employers. The Corporation shall not
make any changes in such plans, benefits or privileges which would adversely
affect Executive's rights or benefits thereunder, unless such change occurs
pursuant to a program applicable to all executive officers of the Corporation
and does not result in a proportionately greater adverse change in the rights of
or benefits to Executive as compared with any other executive officer of the
Corporation. Nothing paid to Executive under any plan or arrangement presently
in effect or made available in the future shall be deemed to be in lieu of the
salary payable to Executive pursuant to Section 3(a) hereof.
(c) During the term of this Agreement, Executive shall be entitled to paid
annual vacation in accordance with the policies as established from time to time
by the Boards of Directors of the Employers, which shall in no event be less
than four weeks per annum. Executive shall not be entitled to receive any
additional compensation from the Employers for failure to take a vacation, nor
shall Executive be able to accumulate unused vacation time from one year to the
next, except to the extent authorized by the Boards of Directors of the
Employers.
(d) During the term of this Agreement, in keeping with past practices, the
Employers shall continue to provide the Executive with the automobile he
presently drives. The Employers shall be responsible and shall pay for all costs
of insurance coverage, repairs, maintenance and other incidental expenses,
including license, fuel and oil. The Employers shall provide the Executive
with a replacement automobile of a similar type as selected by the Executive at
approximately the time that his present automobile reaches three (3) years of
age and approximately every three (3) years thereafter, upon the same terms and
conditions.
(e) During the term of this Agreement, in keeping with past practices, the
Employers shall continue to pay the annual membership dues at the country clubs
which the Executive is currently a member of.
(f) In the event of the Executive's death during the term of this
Agreement, the Executive's spouse, estate, legal representative or named
beneficiaries (as directed by the Executive in writing) shall be paid on a
monthly basis the greater of (i) the death benefits which may be available under
one or more policies of the Employers or (ii) the Executive's Base Salary (as
defined in Section 3(a) hereof) in effect at the time of the Executive's death
for a period of eighteen (18) months from the date of the Executive's death.
(g) The Executive's compensation, benefits and expenses which are required
to be provided under this Agreement shall be paid by the Corporation and the
Savings Bank in the same proportion as the time and services actually expended
by the Executive on behalf of each respective Employer.
4. Expenses.
The Employers shall reimburse Executive or otherwise provide for or pay for
all reasonable expenses incurred by Executive in furtherance of, or in
connection with the business of the Employers, including, but not by way of
limitation, automobile expenses described in Section 3(d) hereof, and traveling
expenses, and all reasonable entertainment expenses (whether incurred at the
Executive's residence, while traveling or otherwise), subject to such reasonable
documentation and other limitations as may be established by the Boards of
Directors of the Employers. If such expenses are paid in the first instance by
Executive, the Employers shall reimburse the Executive therefor.
5. Termination.
(a) The Corporation shall have the right, at any time upon prior Notice of
Termination, to terminate the Executive's employment hereunder for any reason,
including without limitation termination for Cause, Disability or Retirement,
and Executive shall have the right, upon prior Notice of Termination, to
terminate his employment hereunder for any reason.
(b) In the event that (i) Executive's employment is terminated by the
Corporation for Cause, or (ii) Executive terminates his employment hereunder
other than for Good Reason, Executive shall have no right pursuant to this
Agreement to compensation or other benefits for any period after the applicable
Date of Termination. In the event the Executive's employment is terminated due
to the Executive's death, the Executive's rights shall be as provided in Section
3(f) hereof.
(c) In the event that (i) Executive's employment is terminated by the
Corporation for other than Cause, Disability, Retirement or the Executive's
death or (ii) such employment is terminated by the Executive due to a material
breach of this Agreement by the Corporation, which breach has not been cured
within fifteen (15) days after a written notice of non-compliance has been given
by the Executive to the Employers, then the Corporation shall
(A) pay to the Executive, in equal monthly installments
beginning with the first business day of the month following
the Date of Termination, a cash severance amount equal to that
portion of the Executive's Base Salary which would be payable
by the Corporation to the Executive pursuant hereto for a
period ending at the later of (i) the expiration of the
remaining term of employment pursuant hereto prior to the
Notice of Termination or (ii) eighteen (18) months, and
(B) maintain and provide for a period ending at the
earlier of (i) the expiration of the remaining term of
employment pursuant hereto prior to the Notice of Termination
or (ii) the date of the Executive's full-time employment by
another employer (provided that the Executive is entitled
under the terms of such employment to benefits substantially
similar to those described in this subparagraph (B)), at no
cost to the Executive, the Executive's continued participation
in all group insurance, life insurance, health and accident,
disability and other employee benefit plans, programs and
arrangements offered by the Corporation in which the Executive
was entitled to participate immediately prior to the Date of
Termination (other than stock option and restricted stock
plans of the Employers), provided that in the event that the
Executive's participation in any plan, program or arrangement
as provided in this subparagraph (B) is barred, or during such
period any such plan, program or arrangement is discontinued
or the benefits thereunder are materially reduced, the
Corporation shall arrange to provide the Executive with
benefits substantially similar to those which the Executive
was entitled to receive under such plans, programs and
arrangements immediately prior to the Date of Termination.
(d) In the event of the failure by either of the Employers to elect or to
re-elect or to appoint or to re-appoint the Executive to the offices of
President and Chief Executive Officer of the Employers or a material adverse
change made by the either of Employers in the Executive's functions, duties or
responsibilities as President and Chief Executive Officer of the Employers
without the Executive's express written consent, the Executive shall be entitled
to terminate his employment hereunder and shall be entitled to the payments and
benefits provided for in Section 5(c)(A) and (B).
(e) In the event that the Executive terminates his employment hereunder
for Good Reason, then the Corporation shall, subject to the provisions of
Section 6 hereof, if applicable (i) pay to the Executive, in thirty-six (36)
equal monthly installments beginning with the first business day of the month
following the Date of Termination, a cash severance amount equal to three (3)
times that portion of the Executive's Base Salary paid by the Corporation, and
(ii) maintain the benefits provided for in Section 5(c)(B).
(f) In the event that the Executive takes employment with any banking
institution or affiliate thereof in the Corporation and the Bank's market area
after the Date of Termination, the Executive shall have no right pursuant to
this Agreement to continue to receive compensation or other benefits hereunder,
effective with the first business day of the month following the date the
Corporation and the Bank obtain confirmation of such employment, provided,
however, that if the Executive takes such employment following the Executive's
termination of employment with the Corporation and the Bank (i) following a
Change in Control, as defined in Section 1(c) hereof, or (ii) due to a material
breach of this Agreement by the Corporation, the compensation and benefits
provided for hereunder shall remain in full force and effect.
(g) Upon completion of the term of employment under this Agreement, as
defined in Section 2(a) hereof, the Executive shall be entitled to receive, and
the Corporation shall pay to the Executive in one (1) lump sum payment on the
date of termination of employment, a cash severance amount equal to one and
one-half (1.5) times the Executive's Base Salary in the year of such termination
of employment. In addition to such payment, the Employers shall provide
continued medical insurance in the Employers' health plan for the benefit of the
Executive and his spouse for a period of eighteen (18) months beginning with the
first business day of the month following the date of such termination of
employment, and such insurance shall be comparable to that which is provided to
the Executive as of the date of this Agreement notwithstanding anything to the
contrary in this Agreement and regardless of whether the Executive is eligible
to participate in the Employers' health plan. In the event of the Executive's
death before the completion of such eighteen (18) month period, the Employers
shall provide the Executive's spouse continued medical insurance in the
Employers' health plan comparable to that which is being provided to the
Executive's spouse at such time for the remainder of such period.
6. Payment of Additional Benefits under Certain Circumstances.
(a) If the payments and benefits pursuant to Section 5 hereof, either
alone or together with other payments and benefits which Executive has the right
to receive from the Employers (including, without limitation, the payments and
benefits which Executive would have the right to receive from the Savings Bank
pursuant to Section 5 of the Agreement between the Savings Bank and Executive
dated March 7, 1996 ("Savings Bank Agreement"), before giving effect to any
reduction in such amounts pursuant to Section 6 of the Savings Bank Agreement),
would constitute a "parachute payment" as defined in Section 280G(b)(2) of the
Code (the "Initial Parachute Payment," which includes the amounts paid pursuant
to clause (A) below), then the Corporation shall pay to the Executive, in
thirty-six (36) equal monthly installments beginning with the first business day
of the month following the Date of Termination, a cash amount equal to the sum
of the following:
(A) the amount by which the payments and benefits that
would have otherwise been paid by the Savings Bank to the
Executive pursuant to Section 5 of the Savings Bank Agreement
are reduced by the provisions of Section 6 of the Savings Bank
Agreement;
(B) twenty (20) percent (or such other percentage equal
to the tax rate imposed by Section 4999 of the Code) of the
amount by which the Initial Parachute Payment exceeds the
Executive's "base amount" from the Employers, as defined in
Section 280G(b)(3) of the Code, with the difference between
the Initial Parachute Payment and the Executive's base amount
being hereinafter referred to as the "Initial Excess Parachute
Payment";
(C) such additional amount (tax allowance) as may be
necessary to compensate the Executive for the payment by the
Executive of state and federal income and excise taxes on the
payment provided under clause (B) above and on any payments
under this clause (C). In computing such tax allowance, the
payment to be made under clause (B) above shall be multiplied
by the "gross up percentage" ("GUP"). The GUP shall be
determined as follows:
Tax Rate
GUP = -----------
1- Tax Rate
The Tax Rate for purposes of computing the GUP shall be the
highest marginal federal and state income and employment-related
tax rate, including any applicable excise tax rate, applicable
to the Executive in the year in which the payment under clause
(B) above is made.
(b) Notwithstanding the foregoing, if it shall subsequently be determined
in a final judicial determination or a final administrative settlement to which
the Executive is a party that the actual excess parachute payment as defined in
Section 280G(b)(1) of the Code is different from the Initial Excess Parachute
Payment (such different amount being hereafter referred to as the "Determinative
Excess Parachute Payment"), then the Corporation's independent tax counsel or
accountants shall determine the amount (the "Adjustment Amount") which either
the Executive must pay to the Corporation or the Corporation must pay to the
Executive in order to put the Executive (or the Corporation, as the case may be)
in the same position the Executive (or the Corporation, as the case may be)
would have been if the Initial Excess Parachute Payment had been equal to the
Determinative Excess Parachute Payment. In determining the Adjustment Amount,
the independent tax counsel or accountants shall take into account any and all
taxes (including any penalties and interest) paid by or for the Executive or
refunded to the Executive or for the Executive's benefit. As soon as practicable
after the Adjustment Amount has been so determined, the Corporation shall pay
the Adjustment Amount to the Executive or the Executive shall repay the
Adjustment Amount to the Corporation, as the case may be.
(c) In each calendar year that the Executive receives payments of benefits
under this Section 6, the Executive shall report on his state and federal income
tax returns such information as is consistent with the determination made by the
independent tax counsel or accountants of the Corporation as described above.
The Corporation shall indemnify and hold the Executive harmless from
any and all losses, costs and expenses (including without limitation, reasonable
attorneys' fees, interest, fines and penalties) which the Executive incurs as a
result of so reporting such information. Executive shall promptly notify the
Corporation in writing whenever the Executive receives notice of the
institution of a judicial or administrative proceeding, formal or informal, in
which the federal tax treatment under Section 4999 of the Code of any amount
paid or payable under this Section 6 is being reviewed or is in dispute. The
Corporation shall assume control at its expense over all legal and accounting
matters pertaining to such federal tax treatment (except to the extent necessary
or appropriate for the Executive to resolve any such proceeding with respect to
any matter unrelated to amounts paid or payable pursuant to this Section 6) and
the Executive shall cooperate fully with the Corporation in any such proceeding.
The Executive shall not enter into any compromise or settlement or otherwise
prejudice any rights the Corporation may have in connection therewith without
the prior consent of the Corporation.
7. Mitigation; Exclusivity of Benefits.
(a) The Executive shall not be required to mitigate the amount of any
benefits hereunder by seeking other employment or otherwise, nor shall the
amount of any such benefits be reduced by any compensation earned by the
Executive as a result of employment by another employer after the Date of
Termination or otherwise.
(b) The specific arrangements referred to herein are not intended to
exclude any other benefits which may be available to the Executive upon a
termination of employment with the Employers pursuant to employee benefit plans
of the Employers or otherwise.
8. Withholding. All payments required to be made by the Corporation
hereunder to the Executive shall be subject to the withholding of such amounts,
if any, relating to tax and other payroll deductions as the Corporation may
reasonably determine should be withheld pursuant to any applicable law or
regulation.
9. Assignability. The Corporation may assign this Agreement and their
rights and obligations hereunder in whole, but not in part, to any corporation,
bank or other entity with or into which the Corporation may hereafter merge or
consolidate or to which the Corporation may transfer all or substantially all of
their assets, if in any such case said corporation, bank or other entity shall
by operation of law or expressly in writing assume all obligations of the
Corporation hereunder as fully as if it had been originally made a party hereto,
but may not otherwise assign this Agreement or its rights and obligations
hereunder. The Executive may not assign or transfer this Agreement or any rights
or obligations hereunder.
10. Notice. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
To the Corporation: Secretary
Home Federal Corporation
000-000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
To the Savings Bank: Secretary
Home Federal Savings Bank
000-000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
To the Executive: Xxxxxxx X. Xxxxxxx, Xx.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
11. Amendment; Waiver. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and such officer or officers as may be
specifically designated by the Board of Directors of the Corporation to sign on
its behalf. No waiver by any party hereto at any time of any breach by any 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
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
12. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the United States
where applicable and otherwise by the substantive laws of the State of Maryland.
13. Nature of Obligations. Nothing contained herein shall create or
require the Corporation to create a trust of any kind to fund any benefits which
may be payable hereunder, and to the extent that the Executive acquires a right
to receive benefits from the Corporation hereunder, such right shall be no
greater than the right of any unsecured general creditor of the Corporation.
14. Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15. Validity. The invalidity or unenforceability of any provision 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.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
17. Entire Agreement. This Agreement embodies the entire agreement
between the Corporation and the Executive with respect to the matters agreed to
herein. All prior agreements between the Corporation and the Executive with
respect to the matters agreed to herein, including without limitation the
Employment Agreement between the Employers and the Executive dated as of July 1,
1995, are hereby superseded and shall have no force or effect. Notwithstanding
the foregoing, nothing contained in this Agreement shall affect the agreement of
even date being entered into between the Savings Bank and the Executive.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
Attest: HOME FEDERAL CORPORATION
__________________________ By: /s/ Xxxxxxxx X. Xxxxxxxxx
Xxxxxxxx X. Xxxxxxxxx,
Chairman of the Board of Directors
EXECUTIVE
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
Xxxxxxx X. Xxxxxxx, Xx.
