EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of this _____ day of ________ 2004 by and between Home Federal Bancorp, Inc.
(the "Company"), and its wholly owned subsidiary, Home Federal Bank (the
"Savings Bank"), and Xxxxxx X. Xxxxxxx (the "Employee").
WHEREAS, the Employee is currently serving as the President and Chief
Executive Officer of the Company and of the Savings Bank;
WHEREAS, the Employee has made and will continue to make a major
contribution to the success of the Company and the Savings Bank in the position
of President and Chief Executive Officer;
WHEREAS, the board of directors of the Company and the board of
directors of the Savings Bank (collectively, the "Board of Directors") recognize
that the possibility of a change in control of the Savings Bank or the Company
may occur and that such possibility, and the uncertainty and questions which may
arise among management, may result in the departure or distraction of key
management to the detriment of the Company, the Savings Bank and their
respective stockholders;
WHEREAS, the Board of Directors believes that it is in the best
interests of the Company and the Savings Bank to enter into this Agreement with
the Employee in order to assure continuity of management of the Company and its
subsidiaries; and
WHEREAS, the Board of Directors 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. Definitions.
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(a) The term "Change in Control" means (1) an event of a
nature that results in the acquisition of control of the Company or the Savings
Bank within the meaning of the Savings and Loan Holding Company Act under 12
U.S.C. Section 1467a and 12 C.F.R. Part 574 (or any successor statute or
regulation) or requires the filing of a notice with the Federal Deposit
Insurance Corporation under 12 U.S.C. Section 1817(j) (or any successor statute
or regulation); (2) an event that would be required to be reported in response
to Item 1 of the Current Report on Form 8-K, as in effect on the Effective Date,
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 0000 (xxx
"Xxxxxxxx Xxx"); (3) any person (as the 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
Company or the Savings Bank representing 25% or more of the combined voting
power of the Company's or the Savings Bank's outstanding securities; (4)
individuals who are members of the board of directors of the Company immediately
following the Effective Date or who are members of the board of directors of the
Savings Bank immediately
following the Effective Date (in each case, the "Incumbent Board") cease for any
reason to constitute at least a majority thereof, provided that any person
becoming a director subsequently 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 or the Savings Bank's stockholders was
approved by the nominating committee serving under an Incumbent Board, shall be
considered a member of the Incumbent Board; or (5) consummation of a plan of
reorganization, merger, consolidation, sale of all or substantially all of the
assets of the Company or a similar transaction in which the Company is not the
resulting entity, or a transaction at the completion of which the former
stockholders of the acquired corporation become the holders of more than 40% of
the outstanding common stock of the Company and the Company is the resulting
entity of such transaction; 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.
(b) 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.
(c) The term "Date of Termination" means the date upon
which the Employee's employment with the Company or the Savings Bank or both
ceases, as specified in a notice of termination pursuant to Section 8 of this
Agreement or the date a succession becomes effective under Section 10.
(d) The term "Effective Date" means the date of this
Agreement.
(e) The term "Involuntary Termination" means the
termination of the employment of Employee (i) by either the Company or the
Savings Bank or both 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) 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 Company's administrative
offices as of the Effective 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 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 or the Company; (5) a material
permanent increase in the required hours of work or the workload of the
Employee; or (6) the failure of the board of directors of the Company (or a
board of directors of a successor of the Company) to elect him as President and
Chief Executive Officer of the Company (or a successor of
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the Company) or any action by the board of directors of the Company (or a board
of directors of a successor of the Company) removing him from such office, or
the failure of the board of directors of the Savings Bank (or any successor of
the Savings Bank) to elect him as President and Chief Executive Officer of the
Savings Bank (or any successor of the Savings Bank) or any action by such board
(or a board of a successor of the Savings Bank) removing him from such office.
The term "Involuntary Termination" does not include Termination for Cause,
termination of employment due to death or permanent disability pursuant to
Section 7(f) of this Agreement, 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 with either the
Company or the Savings Bank, as the case may be, because of the Employee's
personal dishonesty, 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 (except as provided below)
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 affirmative vote of not less than a majority of
the entire membership of 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
commencing on the Effective Date, subject to earlier termination as provided
herein. Beginning on the first anniversary of the Effective 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 (i)
neither the Employee nor the Company has given notice to the other in writing at
least 90 days prior to such anniversary that the term of this Agreement shall
not be extended further; and (ii) prior to such anniversary, the Board of
Directors, or a committee of the Board of Directors which has been delegated
authority to act on such matters by the Board of Directors ("Committee"),
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. Employment. The Employee shall be employed as the President and
Chief Executive Officer of the Company and as the President and Chief Executive
Officer of the Savings Bank. As such, the Employee shall render all services and
possess the powers as are customarily performed by persons situated in similar
executive capacities, and shall have such other powers and duties as the Board
of Directors may prescribe from time to time. The Employee shall also render
services
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to any subsidiary or subsidiaries of the Company or the Savings Bank as
requested by the Company or the Savings Bank from time to time consistent with
his executive position. The Employee shall devote his best efforts and
reasonable time and attention to the business and affairs of the Company and the
Savings Bank to the extent necessary to discharge his responsibilities
hereunder. The Employee may (i) serve on charitable or civic boards or
committees and, in addition, on such corporate boards as are approved in a
resolution adopted by a majority of the Board of Directors or a Committee, which
approval shall not be withheld unreasonably and (ii) manage personal
investments, so long as such activities do not interfere materially with
performance of his responsibilities hereunder.
4. Cash Compensation.
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(a) Salary. The Company and the Savings Bank jointly
agree to pay the Employee during the term of this Agreement a base salary (the
"Salary") the annualized amount of which shall be not less than the annualized
aggregate amount of the Employee's base salary from the Company and any
Consolidated Subsidiaries in effect at the Effective Date; provided that any
amounts of salary actually paid to the Employee by any Consolidated Subsidiaries
shall reduce the amount to be paid by the Company and the Savings Bank to the
Employee. The Salary shall be paid no less frequently than monthly and shall be
subject to customary tax withholding. The amount of the Employee's Salary shall
be increased (but shall not be decreased) from time to time in accordance with
the amounts of salary approved by the Board of Directors or the Committee or the
board of directors or the appropriate committee of any of the Consolidated
Subsidiaries after the Effective Date. The amount of the Salary shall be
reviewed by the Board of Directors or the Committee at least annually during the
term of this Agreement.
(b) Bonuses. The Employee shall be entitled to
participate in an equitable manner with all other executive officers of the
Company and the Savings Bank in such performance-based and discretionary
bonuses, if any, as are authorized and declared by the Board of Directors or the
Committee for executive officers.
(c) Expenses. The Employee shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by the Employee in
performing services under this Agreement in accordance with the policies and
procedures applicable to the executive officers of the Company and the Savings
Bank, provided that the Employee accounts for such expenses as required under
such policies and procedures.
5. Benefits.
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(a) Participation in Benefit Plans. The Employee shall be
entitled to participate, to the same extent as executive officers of the Company
and the Savings Bank generally, in all plans of the Company and the Savings Bank
relating to pension, retirement, thrift, profit-sharing, savings, group or other
life insurance, hospitalization, medical and dental coverage, travel and
accident insurance, education, cash bonuses, and other retirement or employee
benefits or combinations
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thereof. In addition, the Employee shall be entitled to be considered for
benefits under all of the stock and stock option related plans in which the
Company's or the Savings Bank's executive officers are eligible or become
eligible to participate.
(b) Fringe Benefits. The Employee shall be eligible to
participate in, and receive benefits under, any other fringe benefit plans or
perquisites which are or may become generally available to the Company's or the
Savings Bank's executive officers, including but not limited to supplemental
retirement, deferred compensation program, supplemental medical or life
insurance plans, company cars, club dues, physical examinations, financial
planning and tax preparation services.
6. Vacations; Leave. The Employee shall be entitled (i) to annual paid
vacation in accordance with the policies established by the Board of Directors
or the Committee for executive officers, and (ii) to voluntary leaves of
absence, with or without pay, from time to time at such times and upon such
conditions as the Board of Directors or the Committee may determine in its
discretion.
7. Termination of Employment.
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(a) Involuntary Termination. The Board of Directors may
terminate the Employee's employment at any time, but, except in the case of
Termination for Cause, termination of employment shall not prejudice the
Employee's right to compensation or other benefits under this Agreement. In the
event of Involuntary Termination other than after a Change in Control which
occurs during the term of this Agreement, the Company and the Savings Bank
jointly shall (i) pay to the Employee during the remaining term of this
Agreement the Salary at the rate in effect immediately prior to the Date of
Termination, including the pro rata portion of any incentive award, payable in
such manner and at such times as the Salary would have been payable to the
Employee under Section 4(a) if the Employee had continued to be employed by the
Company and the Savings Bank, and (ii) provide to the Employee during the
remaining term of this Agreement substantially the same group life insurance,
hospitalization, medical, dental, prescription drug and other health benefits,
and long-term disability insurance (if any) for the benefit of the Employee and
his dependents and beneficiaries who would have been eligible for such benefits
if the Employee had not suffered Involuntary Termination, on terms substantially
as favorable to the Employee, including amounts of coverage and deductibles and
other costs to him, as if he had not suffered Involuntary Termination.
(b) Termination for Cause. In the event of Termination
for Cause, the Company and the Savings Bank shall pay to the Employee the Salary
and provide benefits under this Agreement only through the Date of Termination,
and shall have no further obligation to the Employee under this Agreement.
(c) Voluntary Termination. The Employee's employment may
be voluntarily terminated by the Employee at any time upon at least 90 days'
written notice to the Company and the
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Savings Bank or such shorter period as may be agreed upon between the Employee
and the Board of Directors. In the event of such voluntary termination, the
Company and the Savings Bank shall be obligated jointly to continue to pay to
the Employee the Salary and provide benefits under this Agreement only through
the Date of Termination, at the time such payments are due, and shall have no
further obligation to the Employee under this Agreement.
(d) Change in Control. In the event of Involuntary
Termination after a Change in Control which occurs at any time following the
Effective Date while the Employee is employed under this Agreement, the Company
and the Savings Bank jointly shall (i) pay to the Employee in a lump sum in cash
within 25 business days after the Date of Termination an amount equal to 299% of
the Employee's "base amount" as defined in Section 280G of the Code; and (ii)
provide to the Employee during the remaining term of this Agreement
substantially the same group life insurance, hospitalization, medical, dental,
prescription drug and other health benefits, and long-term disability insurance
(if any) for the benefit of the Employee and his dependents and beneficiaries
who would have been eligible for such benefits if the Employee had not suffered
Involuntary Termination, on terms substantially as favorable to the Employee,
including amounts of coverage and deductibles and other costs to him, as if he
had not suffered Involuntary Termination.
(e) Death. In the event of the death of the Employee
while employed under this Agreement and prior to any termination of employment,
the Company and the Savings Bank jointly shall pay to the Employee's estate, or
such person as the Employee may have previously designated in writing, the
Salary which was not previously paid to the Employee and which he would have
earned if he had continued to be employed under this Agreement through the last
day of the calendar month in which the Employee died, together with the benefits
provided hereunder through such date.
(f) Disability. If the Employee becomes entitled to
benefits under the terms of the then-current disability plan, if any, of the
Company or the Savings Bank (the "Disability Plan") or becomes otherwise unable
to fulfill his duties under this Agreement, he shall be entitled to receive such
group and other disability benefits, if any, as are then provided by the Company
or the Savings Bank for executive employees. In the event of such disability,
this Agreement shall not be suspended, except that (i) the obligation to pay the
Salary to the Employee shall be reduced in accordance with the amount of
disability income benefits received by the Employee, if any, pursuant to this
paragraph such that, on an after-tax basis, the Employee shall realize from the
sum of disability income benefits and the Salary the same amount as he would
realize on an after-tax basis from the Salary if the obligation to pay the
Salary were not reduced pursuant to this Section 7(f); and (ii) upon a
resolution adopted by a majority of the disinterested members of the Board of
Directors or the Committee, the Company and the Savings Bank may discontinue
payment of the Salary beginning six months following a determination that the
Employee has become entitled to benefits under the Disability Plan or otherwise
unable to fulfill his duties under this Agreement.
(g) Temporary Suspension or Prohibition. 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
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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 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.
(h) Permanent Suspension or Prohibition. 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), or pursuant to R.C.W.
32.16.090, 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.
(i) Default of the Savings Bank. 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.
(j) Termination by Regulators. 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 Office of Thrift Supervision (the "Director") or his
or her designee, at the time the Federal Deposit Insurance Corporation 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.
(k) Reductions of Benefits. 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.
(k) Reductions of Benefits. 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
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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.
(l) Further Reductions. Any payments made to the
Executive pursuant to this Agreement, or otherwise, are subject to and
conditioned upon their compliance with 12 U.S.C. Section 1828(k) and any
regulations promulgated thereunder.
8. Notice of Termination. In the event that the Company or the Savings
Bank, or both, desire to terminate the employment of the Employee during the
term of this Agreement, the Company or the Savings Bank, or both, shall deliver
to the Employee a written notice of termination, stating whether such
termination constitutes Termination for Cause or Involuntary Termination,
setting forth in reasonable detail the facts and circumstances that are the
basis for the termination, and specifying the date upon which employment shall
terminate, which date shall be at least 30 days after the date upon which the
notice is delivered, except in the case of Termination for Cause. In the event
that the Employee determines in good faith that he has experienced an
Involuntary Termination of his employment, he shall send a written notice to the
Company and the Savings Bank stating the circumstances that constitute such
Involuntary Termination and the date upon which his employment shall have ceased
due to such Involuntary Termination. In the event that the Employee desires to
effect a Voluntary Termination, he shall deliver a written notice to the Company
and the Savings Bank, stating the date upon which employment shall terminate,
which date shall be at least 90 days after the date upon which the notice is
delivered, unless the parties agree to a date sooner.
9. Attorneys' Fees. The Company and the Savings Bank jointly shall pay
all legal fees and related expenses (including the costs of experts, evidence
and counsel) incurred by the Employee as a result of (i) the Employee's
contesting or disputing any termination of employment, or (ii) the Employee's
seeking to obtain or enforce any right or benefit provided by this Agreement or
by any other plan or arrangement maintained by the Company or the Savings Bank
(or a successor) or the Consolidated Subsidiaries under which the Employee is or
may be entitled to receive benefits; provided that the Company's and the Savings
Bank's obligation to pay such fees and expenses is subject to the Employee's
prevailing with respect to the matters in dispute in any action initiated by the
Employee or the Employee's having been determined to have acted reasonably and
in good faith with respect to any action initiated by the Company or the Savings
Bank.
10. No Assignments.
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(a) This Agreement is personal to each of the parties
hereto, and no party may assign or delegate any of its rights or obligations
hereunder without first obtaining the written consent of the other parties;
provided, however, that the Company and the Savings Bank shall require any
successor or assign (whether direct or indirect, by purchase, merger,
consolidation or otherwise) by
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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 Company and/or the Savings Bank would be required to
perform it, if no such succession or assignment had taken place. Failure 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 Company and the Savings Bank
in the same amount and on the same terms as the compensation pursuant to Section
7(d) of this Agreement. For purposes of implementing the provisions of this
Section 10(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.
11. 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 personally delivered or sent by certified
mail, return receipt requested, postage prepaid, to the Company and Savings Bank
at their home offices, to the attention of the Board of Directors with a copy to
the Secretary of the Company and the Secretary of the Savings Bank, or, if to
the Employee, to such home or other address as the Employee has most recently
provided in writing to the Company or the Savings Bank.
12. Amendments. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein otherwise
provided.
13. 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.
14. 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.
15. Governing Law. This Agreement shall be governed by the laws of the
State of Idaho.
16. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction. The OTS may appear at any arbitration hearing but the decision is
not binding on the OTS.
17. Deferral of Non-Deductible Compensation. In the event that the
Employee's aggregate compensation (including compensatory benefits which are
deemed remuneration for purposes of Section 162(m) of the Code) from the Company
and the Consolidated Subsidiaries for any calendar
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year exceeds the maximum amount of compensation deductible by the Company or any
of the Consolidated Subsidiaries in any calendar year under Section 162(m) of
the Code (the "maximum allowable amount"), then any such amount in excess of the
maximum allowable amount shall be mandatorily deferred with interest thereon at
8% per annum to a calendar year such that the amount to be paid to the Employee
in such calendar year, including deferred amounts and interest thereon, does not
exceed the maximum allowable amount. Subject to the foregoing, deferred amounts
including interest thereon shall be payable at the earliest time permissible.
18. Knowing and Voluntary Agreement. Employee represents and agrees
that he has read this Agreement, understands its terms, and that he has the
right to consult counsel of choice and has either done so or knowingly waives
the right to do so. Employee also represents that he has had ample time to read
and understand the Agreement before executing it and that he enters into this
Agreement without duress or coercion from any source.
* * * * *
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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 BANCORP, INC.
__________________________________ ____________________________________
__________________________________ By: ________________________________
Its: _______________________________
Attest: HOME FEDERAL BANK
__________________________________ ____________________________________
__________________________________ By: ________________________________
Its: _______________________________
EMPLOYEE
____________________________________
Xxxxxx X. Xxxxxxx
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