EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of this
3rd day of March, 1997, 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. O. Xxx 0000, Xxxxx Xxxxx, Xxxxx
Xxxxxx 00000-0000 and Xxxx X. Xxxx (the "Employee"), currently residing at 0000
Xxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxx Xxxxxx 00000.
RECITALS
A. The Employee is commencing employment March 3, 1997 in the position of
Executive Vice President and Chief Operations Officer.
B. The Bank recognizes the important service that the Employee will
provide for the Bank and provides this Agreement as consideration for the work
he will perform for the Bank.
C. 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 Bank has approved and authorized the execution of a
Change-in-Control Agreement with the Employee contemporaneously 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 Executive Vice
President and Chief Operations Officer. As Executive Vice President and Chief
Operations Officer, Employee shall have all such authority, powers, duties and
responsibilities customarily afforded to the office of Executive Vice President
and Chief Operations 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. Employee shall
report to the Chairman/President/Chief Executive Officer.
(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 $140,000 per year (payable in bi-monthly increments of $5,833.33) 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 (ACE) Plan and shall
receive whatever award is provided for Employee under that plan. In addition
the Employee shall participate in the Bank's Short Term Incentive Plan for
Senior Management at a Tier II award level.
(c) LONG-TERM INCENTIVE PLAN. Employee shall participate in the
Bank's Stock Based Long Term Incentive Plan for Senior Management at a Tier II
award level.
(d) EXPENSES. During the term of his employment hereunder, the
Employee shall be entitled to receive prompt reimbursement of all reasonable
expenses incurred by him (in accordance with the policies and procedures at
least as favorable to the Employee as those presently applicable to the Bank's
Executive Officers) in performing services hereunder, provided that the Employee
properly accounts therefor in accordance with the Bank policy.
3. BENEFITS.
(a) PARTICIPATION IN RETIREMENT AND EMPLOYEE BENEFIT PLANS. The
Employee shall be entitled while employed hereunder to participate equitably in,
and receive benefits under, all plans relating to stock options, stock
purchases, pension, salary deferral, thrift, profit-sharing, group life
insurance, medical coverage, tuition reimbursement, annual bonus, disability,
and other retirement or employee benefits or combinations thereof, that are now
or hereafter maintained for the benefit of the Bank's Executive Officers of the
same ranking or for its employees generally.
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(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 March 3, 1997 (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 90 days 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. An annual performance evaluation of the Employee
will be performed by the Chairman/Chief Executive Officer/President and reported
to the Board of Directors. Following that report and only if the Chairman/Chief
Executive Officer/President elects not to extend the term for one additional
year, the Chairman shall give written notice of the Bank's intent not to extend
the term for one additional year at least 90 days in advance of the date on
which the term of employment under this Agreement would otherwise be extended.
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.
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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.
Notwithstanding the foregoing, the Employee shall not be deemed to
have been terminated for Cause unless and until there shall have been
delivered to the Employee written notice from the Chief Executive
Officer stating that in the good faith opinion of the Chief Executive
Officer the Employee was guilty of conduct constituting "Cause" as set
forth above and specifying the particulars thereof.
(b) TERMINATION OF EMPLOYMENT WITHOUT CAUSE. The Chairman/Chief
Executive Officer/President may terminate the Employee's employment at any time,
but any termination, other than for Cause, shall not prejudice the Employee's
right to compensation or other benefits under the Agreement during the remainder
of its Term. Employee shall in such case be entitled to receive the following:
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i) his then-applicable base salary for the then-remaining term
of the Agreement as calculated in accordance with Section 4 hereof, payable in
such manner and at such times as such salary would have been payable to the
Employee under Section 2 had he remained in the employ of the Bank,
ii) his health insurance coverage for the then-remaining term of
the Agreement as calculated in accordance with Section 4 hereof, provided that
the Employee pays any employee contribution required of employees at the senior
executive level,
iii) awards under the Senior Management Short Term and Long Term
Incentive Plans for the preceding fiscal year if employment ended after the
fiscal year end but before the award was paid. All potential awards under the
Long Term and Short Term Plans for a fiscal year not completed at employment
termination shall be forfeited.
iv) individual out-placement counselling services paid by the
Bank.
(c) "TERMINATION" OR "INVOLUNTARY TERMINATION". The terms "termination"
or "involuntarily terminated" in this Agreement shall refer to the termination
of the employment of Employee without his express written consent. In addition,
a material diminution of or interference with the Employee's duties,
responsibilities and benefits, shall be deemed and shall constitute an
involuntary termination of employment to the same extent as express notice of
such involuntary termination.
(d) VOLUNTARY TERMINATION. The Employee may voluntarily terminate his
employment at any time upon 90 days written notice to the Bank or upon such
shorter period as may be agreed upon between the Employee and the Board of
Directors of the Bank. In the event of such voluntary termination, except in
the case of a Change in Control, as defined in the Change-in-Control Agreement
between the parties, the Bank shall be obligated to continue to pay the
Employee his base salary only through the date of termination, at the time such
payments are due, and the Bank shall have no further obligation to the Employee
under this Agreement.
(e) CHANGE-IN-CONTROL. In the event of a Change-in-Control, as defined in
the Change-in-Control Agreement between the parties executed contemporaneously
with this Agreement, the provisions of that Change-in-Control Agreement shall
supersede and override any rights under this Agreement. The Employee is not
entitled to payments under this Agreement in the event of a "Change-in-Control".
(f) DEATH. In the event of the death of the Employee during the term of
employment under this Agreement and prior to any termination hereunder, the
Employee's estate, or such person as the Employee may have previously designated
in writing, shall be entitled to receive from the Bank the salary of the
Employee through the last day of the calendar month in which his death shall
have occurred, and the term of employment under this Agreement shall end on such
last day of the month.
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(g) DISABILITY. If during the term of employment hereunder the Employee
shall become disabled or incapacitated to the extent that he is unable to
perform the normal duties of his position, as determined by the Bank's
disability insurance carrier, he shall be entitled to receive disability
benefits of the type provided for other executive employees of the Bank. In
such event, the rights of the Employee to receive the salary stated in Section 2
hereof shall be suspended after a period of six months until such time as the
Employee is able to resume his duties.
(h) If the Employee is suspended from officer and/or temporarily
prohibited from participating in the conduct of the Bank's affairs by a notice
served under Section 8(e)(e) or (g((1) of the Federal Deposit Insurance Act
("FDIA"), 12 U.S.C. Section 1818(e)(3); (g)(1), the 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 Bank
may in its discretion (i) pay the 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 the obligations which were suspended.
(i) If the Employee is removed from office and/or permanently prohibited
from participating in the conduct of the 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); (g)(1), all
obligations of the Bank under this Agreement shall terminate, as of the
effective date of the order, but vested rights of the parties shall not be
affected.
(j) If the Bank becomes in default (as defined in Section 3(x)(1) of the
FDIA, 12 U.S.C. Section 1813(x)(1)), all obligations under this Agreement shall
terminate as of the date of default, but this provision shall not affect any
vested rights of the parties.
(k) 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 Bank: (i) by the Director of the Office of Thrift
Supervision ("OTS") or his or her designee at the time the Federal Deposit
Insurance Corporation ("FDIC") or the Resolution Trust Corporation ("RTC")
enters into an agreement to provide assistance to or on behalf of the Bank under
the authority contained in Section 13(c) of the FDIA, 12 U.S.C. Section 1823(c);
or (ii) by the Director of the OTS or his or her designee at the time the
Director of the OTS or his or her designee approves a supervisory merger to
resolve problems related to operation of the Bank or when the Bank is determined
by the Director of the OTS 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.
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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.
(b) OTHER TERMINATION. In all other events, except from the event
described in subsection 7(a), above, the Employee shall not be entitled to
reimbursement of attorney's fees or costs.
8. COVENANT NOT TO COMPETE. The Employee covenants and agrees that in
the event he voluntarily terminates his employment under Section 6(d) hereof,
for a period commencing at the Date of Termination and continuing for a period
of twelve 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.
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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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Employee acknowledges that as a result of employment with the Bank he
has access to and knowledge of confidential, trade secret and proprietary
information of the Bank. In exchange for the consideration set forth herein and
for the consideration set forth in the Change-in-Control Agreement
contemporaneously executed, Employee agrees not to disclose to anyone inside or
outside the Bank or use for his own benefit or the benefit of others, any of
this information without the express written consent of the Bank. Employee
acknowledges an unauthorized disclosure or use of this information would be
unfair and would cause the Bank irreparable harm.
10. NO SETOFF; MITIGATION; ATTORNEYS' FEES. The Bank's obligation to make
the payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Bank may have
against the Employee or others without the Employee's consent. In no event
shall the Employee be obligated to seek other employment or take any other
action by way of mitigation of the amounts payable to the Employee under any of
the provisions of this Agreement. The Bank agrees to pay, to the full extent
permitted by law, all legal fees and expenses which the Employee may reasonably
incur as a result of any contest (regardless of the outcome thereof) by the Bank
or others of the validity or enforceability of, or liability under, any
provision of this Agreement or any guarantee of performance thereunder
(including as a result of any payment pursuant to Section 6(b) of this
Agreement), plus in each case interest at the applicable Federal rate provided
for in Section 7872(f)(2) of the Code.
11. NO ASSIGNMENTS.
(a) This Agreement is personal to each of the parties hereto, and
neither party may assign or delegate any of its rights or obligations hereunder
without first obtaining the written consent of the other party; provided,
however, that the Bank will require any successor or assign (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of Bank, by an assumption
agreement in form and substance satisfactory to the Employee in his sole
discretion, to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Bank would be required to perform it if
no such succession or assignment had taken place. Failure of the Bank to obtain
such an assumption agreement prior to the effective date of any such succession
or assignment shall be a breach of this Agreement.
(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,
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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
/s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
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HOME FEDERAL SAVINGS BANK
By: /s/ Xxxxxx X. Xxxx
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Its: Chairman, President and Chief
Executive Officer
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