AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXHIBIT
10.4
AMENDED AND
RESTATED EMPLOYMENT
AGREEMENT
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is dated this
22nd day of December 2008, between Home Bank, a federally-chartered savings
bank located in Lafayette, Louisiana (the “Bank” or the “Employer”) and X. X.
Xxxxxx (the “Executive”).
WHEREAS,
the Executive is currently employed as First Vice President and Xxxxxxx City
President, and the Executive and the Bank have previously entered into an
employment agreement dated March 27, 2006 (the “Prior Agreement”);
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(i)
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any
material breach of this Agreement by the Employer, including without
limitation any of the following: (A) a material diminution in the
Executive’s base compensation, (B) a material diminution in the
Executive’s authority, duties or responsibilities, or (C) a material
diminution in the authority, duties or responsibilities of the officer to
whom the Executive is required to report,
or
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(ii)
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any
material change in the geographic location at which the Executive must
perform his services under this
Agreement;
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provided,
however, that prior to any termination of employment for Good Reason, the
Executive must first provide written notice to the Employer within ninety (90)
days of the initial existence of the condition, describing the existence of such
condition, and the Employer shall thereafter have the right to remedy the
condition within thirty (30) days of the date the Employer received the written
notice from the Executive. If the Employer remedies the condition
within such thirty (30) day cure period, then no Good Reason shall be deemed to
exist with respect to such condition. If the Employer does not remedy
the condition within such thirty (30) day cure period, then the Executive may
deliver a Notice of Termination for Good Reason at any time within sixty (60)
days following the expiration of such cure period.
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(j) IRS. IRS
shall mean the Internal Revenue Service.
(a) The
Employer hereby employs the Executive as First Vice President and Xxxxxxx City
President, and the Executive hereby accepts said employment and agrees to render
such services to the Employer on the terms and conditions set forth in this
Agreement. The term of this Agreement shall be a period of three
years commencing as of the Effective Date and ending on the third anniversary of
the Effective Date, subject to earlier termination as provided
herein.
(b) During
the term of this Agreement, the Executive shall perform such executive services
for the Employer as may be consistent with his titles and from time to time
assigned to him by the Employer=s
President.
(a) The
Employer shall compensate and pay the Executive for his services during the term
of this Agreement at a minimum base salary of $75,000 per year (ABase
Salary@),
which may not be decreased without the Executive=s
express written consent. In addition to his Base Salary, the
Executive shall be entitled to receive during the term of this Agreement such
bonus payments as may be determined by the President of the
Employer.
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(b) During
the Employment Period, the Executive shall be entitled to participate in and
receive the benefits of any pension or other retirement benefit plan, profit
sharing plan or other plans, benefits and privileges given to employees and
executives of the Employer, to the extent commensurate with his then duties and
responsibilities. The Employer shall not make any changes in such
plans, benefits or privileges which would adversely affect the Executive=s
rights or benefits thereunder, unless such change occurs pursuant to a program
applicable to all executive officers of the Employer and does not result in a
proportionately greater adverse change in the rights of or benefits to the
Executive as compared with any other executive officer of the
Employer. Nothing paid to the 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 the Executive pursuant to Section 3(a)
hereof.
(c) During
the Employment Period, the Executive shall be entitled to paid annual vacation
in accordance with the policies as established from time to time by the
Employer. The Executive shall not be entitled to receive any additional
compensation from the Employer for failure to take a vacation, nor shall the
Executive be able to accumulate unused vacation time from one year to the next,
except to the extent authorized by the Employer.
(d) During
the Employment Period, the Employer shall provide the Executive with the use of
an automobile. The Employer shall pay for all costs of insurance
coverage, repairs, maintenance and other incidental expenses, including license,
fuel and oil, related to the Executive=s
business use of the automobile, subject to such reasonable documentation and
other limitations as may be established by the Employer.
(a) The
Employer 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 the Executive shall have the right,
upon prior Notice of Termination, to terminate his employment hereunder for any
reason.
(b) In
the event that (i) the Executive=s
employment is terminated by the Employer for Cause or (ii) the Executive
terminates his employment hereunder other than for Disability, Retirement, death
or Good Reason, the Executive shall have no right pursuant to this Agreement to
compensation or other benefits for any period after the applicable Date of
Termination.
(c) In
the event that the Executive=s
employment is terminated as a result of Disability, Retirement or the
Executive=s
death during the term of this Agreement, the Executive shall have no right
pursuant to this Agreement to compensation or other benefits for any period
after the applicable Date of Termination.
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(d) In
the event that (i) the Executive=s
employment is terminated by the Employer for other than Cause, Disability,
Retirement or the Executive=s
death or (ii) such employment is terminated by the Executive for Good Reason,
then the Employer shall, subject to the provisions of Section 6 hereof, if
applicable:
(1) pay
to the Executive, in a lump sum within 10 business days after the Date of
Termination, a cash severance amount equal to the Annual Compensation that would
have been paid to the Executive for the then remaining Employment Period;
and
(2) maintain
and provide for a period ending at the earlier of (i) the expiration of the
remaining Employment Period 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 (2)), at no cost to the Executive, the
Executive=s
continued participation in all group insurance, life insurance, health and
accident insurance, and disability insurance offered by the Employer in which
the Executive was participating immediately prior to the Date of Termination;
provided that any insurance premiums payable by the Employer or any successor
pursuant to this Section 5(d)(2) shall be payable at such times and in such
amounts (except that the Employer shall also pay any employee portion of the
premiums) as if the Executive was still an employee of the Employer, subject to
any increases in such amounts imposed by the insurance company or COBRA, and the
amount of insurance premiums required to be paid by the Employer in any taxable
year shall not affect the amount of insurance premiums required to be paid by
the Employer in any other taxable year; and provided further that if the
Executive’s participation in any group insurance plan is barred, the Employer
shall either arrange to provide the Executive with insurance benefits
substantially similar to those which the Executive was entitled to receive under
such group insurance plan or, if such coverage cannot be obtained, pay a lump
sum cash equivalency amount within thirty (30) days following the date of
termination of the Executive’s employment based on the annualized rate of
premiums being paid by the Employer as of the date of termination of the
Executive’s employment.
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(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,
except as set forth in Section 5(d)(2) above.
(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 Employer pursuant to employee benefit plans of the Employer
or otherwise.
To the
Employer: Board
of Directors
Home
Bank
503
Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxxx 00000
To the
Executive: X.
X. Xxxxxx
at the
address last appearing on
the
personnel records of the Employer
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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
Louisiana.
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19. Regulatory
Actions. The following provisions shall be applicable to the
parties to the extent that they are required to be included in employment
agreements between a savings association and its employees pursuant to Section
563.39(b) of the Regulations Applicable to All Savings Associations, 12 C.F.R.
'563.39(b),
or any successor thereto, and shall be controlling in the event of a conflict
with any other provision of this Agreement, including without limitation Section
5 hereof.
(a) If
the Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the Employer=s
affairs pursuant to notice served under Section 8(e)(3) or Section 8(g)(1) of
the Federal Deposit Insurance Act (AFDIA@)
(12 U.S.C. ''1818(e)(3)
and 1818(g)(1)), the 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, the Employer may, in its discretion: (i) pay
the Executive 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.
(b) If
the Executive is removed from office and/or permanently prohibited from
participating in the conduct of the Employer=s
affairs by an order issued under Section 8(e)(4) or Section 8(g)(1) of the FDIA
(12 U.S.C. ''1818(e)(4)
and (g)(1)), all obligations of the Employer under this Agreement shall
terminate as of the effective date of the order, but vested rights of the
Executive and the Employer as of the date of termination shall not be
affected.
(c) If
the Employer is in default, as defined in Section 3(x)(1) of the FDIA (12 U.S.C.
'1813(x)(1)),
all obligations under this Agreement shall terminate as of the date of default,
but vested rights of the Executive and the Employer as of the date of
termination shall not be affected.
(d) All
obligations under this Agreement shall be terminated pursuant to 12 C.F.R. '563.39(b)(5),
except to the extent that it is determined that continuation of the Agreement
for the continued operation of the Employer is necessary: (i) by the
Director of the Office of Thrift Supervision (AOTS@),
or his/her designee, at the time the Federal Deposit Insurance Corporation
(AFDIC@)
enters into an agreement to provide assistance to or on behalf of the Employer
under the authority contained in Section 13(c) of the FDIA (12 U.S.C. '1823(c));
or (ii) by the Director of the OTS, or his/her designee, at the time the
Director or his/her designee approves a supervisory merger to resolve problems
related to operation of the Employer or when the Employer is determined by the
Director of the OTS to be in an unsafe or unsound condition, but vested rights
of the Executive and the Employer as of the date of termination shall not be
affected.
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IN WITNESS
WHEREOF, this Agreement has been executed as of the date first written
above.
HOME
BANK
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By:
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/s/ Xxxx X. Xxxxxxxx | |
Xxxx
X. Xxxxxxxx
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President
and Chief Executive Officer
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EXECUTIVE
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By:
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/s/ X. X. Xxxxxx | |
X.
X. Xxxxxx
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