Exhibit 10.7
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made effective as of the 1st day of July, 1992 by and
between First Home Savings Bank, S.L.A., a savings and loan association
incorporated under the laws of New Jersey (the "Bank"), and Xxxxxxx X.
Xxxxxxxxx (the "Executive").
W I T N E S S E T H:
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WHEREAS, the Executive has for many years been employed as President of
Fidelity Mutual Savings and Loan Association ("Fidelity Mutual"); and
WHEREAS, pursuant to the terms of a certain Agreement of Conversion
Merger, Fidelity Mutual converted from a mutual savings and loan association to
a capital stock savings and loan association and, simultaneously therewith, was
merged with and into the Bank, and
WHEREAS, the Bank desires that the Executive become an employee of the
Bank; and
WHEREAS, the Executive is willing to become an employee of the Bank on
the terms and conditions set forth in this Agreement;
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Employment
The Bank hereby employs the Executive, and the Executive hereby
accepts such employment and agrees to remain in the employ of the Bank, for the
period stated in paragraph 3 below and upon the other terms and conditions
herein provided.
2. Position and Duties
During the Employment Period (as defined in Section 3(a)), the
Executive agrees to serve as an Executive Vice President of the Bank and shall
perform such managerial duties and responsibilities for the Bank as the Board of
Directors of the Bank or any superior officer may direct in accordance with the
bylaws of the Bank. Throughout the Employment Period, and except for illness,
vacation periods and leaves of absence granted by the Bank (if any), the
Executive shall devote all his business time, attention, skill and efforts to
the faithful performance of his duties hereunder, and, subject to Section
7(g)(1), accept such office or offices to which he may be elected by the Board
of Directors of the Bank. Subject to the obligations and responsibilities of the
Board of Directors under applicable law, at the first annual meeting of
shareholders of the Bank after the Effective Date (as hereinafter defined) the
Bank shall recommend to its shareholders that the Executive be elected to serve
on the Board of Directors.
3. Term
The period of the Executive's employment under this Agreement shall
commence as of the date of the merger of Fidelity Mutual with and into the Bank
(the "Effective Date") and shall, unless sooner terminated by the death of the
Executive, mutual agreement or pursuant to Section 7, continue for a period of
one (1) year therefrom, (such period being herein referred to as the "Employment
Period"). The last day of the Employment Period, and without regard to any early
termination pursuant to Section 7, is hereinafter referred to as the "Expiration
Date."
4. Compensation
a. Salary and Incentive Compensation
For all services rendered by the Executive in any capacity
during the Employment Period under this Agreement, the Executive shall be paid
as compensation (i) an annual salary of $85,600, plus (ii) such incentive
compensation or bonus as may be awarded to the Executive from time to time by
the Board of Directors. Such salary shall be payable in 52 equal weekly
installments and any such incentive compensation or bonus shall be payable in
the manner and at the time specified by the Board of Directors.
b. Reimbursement of Expenses
The Bank shall pay or reimburse the Executive, in accordance
with the Bank's policies and requirements, for all reasonable travel and other
expenses incurred by the Executive in performing his obligations under this
Agreement. The Executive shall be provided, at his option, with an automobile
expense allowance, or the use of a recent model automobile which will be owned
by the Bank, as may be mutually agreed upon by the Executive and the Bank. All
reasonable business related expenses associated therewith shall be borne by the
Bank.
5. Participation in Incentive Compensation and Benefit Plans
In addition to the payments provided under this Agreement, the
Executive (or his beneficiary) may be, or may become, entitled to benefits under
any executive or contingent compensation plan, stock option', restricted stock
or stock purchase plan, retirement income or pension plan, supplemental or
excess benefit plan, group hospitalization, health care, or sick leave plan,
life or other insurance or death benefit plan, travel and
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accident insurance, vacation plan, or other present or future group employee
benefit plan or program of the Bank for which executive employees of the Bank
generally are eligible, and the Executive shall be eligible to receive, with
respect to the Employment Period, all benefits and emoluments for which he is
eligible under any such benefit plan or program of the Bank in accordance with
the provisions and requirements of any such plan or program.
6. Vacation and Sick Leave
Executive shall be entitled to be compensated for annual vacation,
personal and sick leave in accordance with established Bank policy.
7. Termination or Suspension of Employment
a. Termination without Cause
Notwithstanding anything to the contrary contained in this
Agreement, subject to the Executive receiving the compensation set forth in
subsection (i) of this Section 7, the Bank's Board of Directors may terminate
the Executive's employment under this Agreement at any time. Termination of
Executive's employment under this subsection shall be deemed a breach of this
Agreement by the Bank.
b. Termination with Cause
The Bank's Board of Directors may terminate the Executive's
employment under this Agreement at any time for cause. The Executive shall have
no right to receive compensation or other benefits for any period after
termination for cause. The term "for cause" shall include the Executive's
personal dishonesty, incompetency, 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. If the Bank's Board of Directors determines that
Executive's employment under this Agreement shall be terminated for cause, then
the Board shall forthwith provide Executive with a written notice of said
determination. The notice shall contain a detailed statement of the facts which
constitute the particulars of the cause for termination. As used herein, the
term incompetency shall mean the determination by a court that the Executive is
unable to manage his own affairs by reason of insanity, imbecility or feeble
mindedness.
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c. Suspension Pursuant to Notice
If Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
ss.1818(e)(3) and (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 Executive all or part of the compensation withheld while the Bank's
obligations under this Agreement were suspended and (ii) reinstate (in whole or
in part) any of the Bank's obligations under this Agreement which were
suspended.
d. Termination Pursuant to Order
If the Executive is removed 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 Federal Deposit Insurance Act (12 U.S.C.
ss.1818(e)(4) or (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 Bank
and Executive shall not be affected.
e. Termination Upon Default Under National Housing Act
If the Bank is in default (as defined in Section 3(X)(1) of the
Federal Deposit Insurance Act), all obligations under this Agreement shall
terminate as of the date of default, but this subsection shall not affect any
vested rights of the Bank and Executive.
f. Termination by Office of Thrift Supervision
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 or his or her designee at the time the Federal Deposit Insurance
Corporation or the Resolution Trust Corporation enters into an agreement to
provide assistance to or on behalf of the Bank under the authority contained in
Section 13(c) of the Federal Deposit Insurance Act; or (ii) by the Director of
the Office of Thrift Supervision or his or her designee, at the time such
Director or designee approves a supervisory-merger to resolve problems related
to operation of the Bank or when the Bank is determined by such Director to be
in an unsafe and unsound condition. Any rights of the Bank or Executive that
have already vested, however, shall not be affected by such action.
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g. Terminated by Executive for Good Reason
The Executive shall be entitled to terminate his employment
hereunder for good reason. Any termination of employment hereunder under any of
the following circumstances shall be for good reason, the occurrence of any of
which shall be deemed a breach of this Agreement by the Bank:
(1) without the express written consent of the Executive, the
Executive is assigned any duties inconsistent with his positions,
duties, responsibilities and status with the Bank as in effect on the
Effective Date, or his titles as in effect on the Effective Date, are
changed or the Executive is removed or not re-elected to any of such
positions, except in connection with the termination of the Executive's
employment pursuant to subsections b., c., d., e. or f. of Section 7 of
this Agreement, as a result of his substantial disability or death, or
as a result of Executive not being re-elected to serve on the Board of
Directors of Bank;
(2) the salary of the Executive set forth in Section 4 is
reduced, except if such salary is reduced at the request, direction or
order of the Office of Thrift Supervision, the Federal Deposit
Insurance Corporation, the New Jersey Department of Banking or any
other governmental agency;
(3) the Bank fails to continue for the Executive any benefit or
compensation plan providing the Executive with substantially similar
benefits to those plans in which the Executive is participating at the
Effective Date or in which the Executive hereafter may participate; or
(4) the Bank shall fail to observe or perform any covenant or
agreement in this Agreement to be observed or performed by the Bank;
(5) a change in control (as defined below) of the Bank occurs.
For the purposes of this Agreement, a "change in control of the
Bank" shall mean a change in control whether by stock transfer, sale of assets,
merger, consolidation or otherwise; provided that, without limitation such a
change of control shall be deemed to have occurred if (i) any person other than
those persons in control of the Bank on the date hereof, acquires the power,
directly or indirectly, to direct the management or policies of the Bank or to
vote 25% or more of any class of voting securities of the Bank; or (ii) within
any period of three
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consecutive years during the term of this Agreement, individuals who at the
beginning of such period constitute the Board of Directors of the Bank cease for
any reason to constitute at least a majority thereof.
h. (Intentionally Omitted]
i. Remedies for Termination
(1) Upon termination of the Executive's employment under this
Agreement pursuant to subsections a. or g. of this Section 7, the
Executive shall receive until the Expiration Date:
(a) 200% of the salary set forth in Section 4, payment of
which shall be at the time provided for in this Agreement as if the
Executive's employment under this Agreement has not terminated.
(b) annually, an amount equal to the average of the three
highest annual incentive compensation payments made to Executive by the
Bank prior to the termination pursuant to subsection a. or the event
given Executive the right to terminate his employment under subsection
g.; and
(c) medical care, pension and similar benefits, at no cost to
Executive, substantially comparable to those furnished to Executive by
the Bank immediately prior to termination of employment hereunder.
(d) upon termination without Cause or termination for "good
reason" following a "change in control," the Bank shall determine the
aggregate present value (pursuant to ss.1274(b)(2) of the Internal
Revenue Code) of all amounts payable hereunder, and of all of other
amounts payable to the Executive upon or by reason of his termination
which are determined in good faith by the Bank to be "parachute
payments," (as defined in ss.280G(b)(2) of the Code and the regulations
promulgated thereunder) made pursuant to agreements or plans which are
subject to Section 280G. The Bank's determination of present value and
of other amounts constituting "parachute payments" is binding; provided
that if Executive obtains an opinion of counsel satisfactory to the
Bank or an Internal Revenue Service ruling to the effect that the
method of determining present value was improper or that specified
payments did not constitute "parachute payments," calculations will be
made in accordance with such opinion or filing. In the event that
aggregate present value of all benefits under this Agreement and other
"parachute payments" is equal to or in excess of
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300% of the Executive's "base amount" as defined in Section
280G(b)(3)(A) and regulations thereunder, the Executive waives the
right to "parachute payments" sufficient to reduce the present value of
all such payments below 300% of the "base amount." The Executive shall
have the right to designate those benefits which shall be waived or
reduced in order to comply with this provision, but failing designation
by the Executive, the Bank may designate those benefits which must be
waived or reduced. If it is established pursuant to a final
determination of a court of competent jurisdiction or an Internal
Revenue Service proceeding that, notwithstanding the good faith of the
Executive and the Bank in applying the terms of this Section 7, the
aggregate "parachute payments" paid to or for the Executive's benefit
are in an amount that would result in any portion of such "parachute
payments" paid to or for the Executive's benefit not being deductible
by the Bank or an Affiliate by reason of Section 280G of the Code, then
the Executive shall have an obligation to pay the Bank upon demand an
amount equal to the sum of (i) the excess of the aggregate "parachute
payments" paid to or for the Executive's benefit without any portion of
such "parachute payments" not being deductible by reason of Section
280G of the Code and (ii) interest on the amount set forth in clause
(i) above at the applicable federal rate (as defined in Section 1274(d)
of the Code) from the date of the Executive's receipt of such excess
until the date of such payment.
(2) Any payment made by Bank under this Section shall be deemed
to constitute liquidated damages and not a penalty for the Bank's
breach of this Agreement. Executive shall not be required to mitigate
his damages hereunder by seeking employment or otherwise.
(3) Notwithstanding anything to the contrary contained in this
Section, Executive shall not receive and does hereby waive the right to
receive any amount upon his termination of employment (whether pursuant
to the terms of this Agreement or pursuant to any other policy or
arrangement) which would cause Executive to receive an amount which
exceeds three times the Executive's annualized salary for the year in
which Executive's employment is terminated.
j. Disability Termination
In the event that the Executive is totally disabled prior to the
Expiration Date of this Agreement, the Bank shall have the right to terminate
Executive's employment on ten (10) days written notice to Executive, provided
the Bank shall pay the Executive a disability benefit which is equal to the
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salary provided in Section 4, received by Executive at the commencement of the
Executive's total disability, reduced by the sum of (i) the amount of any
benefits to which the Executive may be entitled with respect to the same period
under any disability plan or pension plan, including related supplemental and
excess benefit plans or agreements, of the Bank and (ii) the disability benefits
payable under any government regulated plan including workers' compensation
benefits. Payment of such disability benefit shall commence with the week
coincident with the termination of Executive's employment under this Agreement
and shall continue until the earlier of the Expiration date or the Executive's
death. During any period the Executive shall be entitled to receive disability
payments from the Bank, to the extent that he is physically and mentally able to
do so, he shall furnish information and assistance to the Bank, and, in
addition, upon reasonable request in writing from time to time he shall make
himself available to the Bank to undertake reasonable assignments with the
dignity, importance, and scope of his prior position and his physical and mental
health. As used in this Agreement, the term "total disability" shall mean the
complete inability of the Executive to perform all of his duties under this
Agreement as determined by an independent physician selected with the approval
of the Board of Directors and the Executive.
8. Withholding of Taxes
The Bank may withhold from any payments under this Agreement all
applicable taxes, as shall be required pursuant to any law or governmental
regulation or ruling.
9. Prior Agreements
This Agreement constitutes the entire agreement and understanding
between the parties with respect to the subject matter hereof, supersedes all
prior and contemporaneous agreements and understandings and any prior employment
agreement between the Bank and the Executive.
10. Consolidation or Merger
Nothing in this Agreement shall preclude the Bank from
consolidating or merging into or with or transferring all or substantially all
of its assets to, any Person which assumes this Agreement and all obligations of
the Bank hereunder. Upon such a consolidation, merger or transfer of assets and
assumption, the term, "Bank" shall refer to such other Person and this Agreement
shall continue in full force and effect.
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11. General Provisions
a. Non-Assignability
Neither this Agreement nor any right or interest hereunder shall
be assignable by the Executive without the Bank's prior written consent;
provided, however, that nothing in this subparagraph 11a. shall preclude the
executors, administrators, or other legal representatives of the estate of the
Executive from assigning any rights hereunder to the Person or Persons entitled
thereto under the Executive's will or, in case of intestacy, to the Person or
Persons entitled thereto under the laws of intestacy applicable to the
Executive's estate.
b. No Attachment
Except as otherwise required by law, no right to receive
payments under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge or hypothecation or to
execution, attachment, levy or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall
be null, void and of no effect.
c. Binding Agreement
This Agreement shall be binding upon and inure to the benefit of
the Executive and the Bank, the Executive's heirs, executors and assigns and the
Bank's successors and assigns.
d. "Person" Defined
"Person" as used herein means a natural person, joint venture,
corporation, sole proprietorship, trust, estate, partnership, cooperative,
association, organization, government or governmental entity, or other entity.
12. Legal Expenses
If the Executive obtains a judgment which enforces a right or
benefit under this Agreement, the Bank shall pay to the Executive all reasonable
legal fees and expenses incurred by the Executive in seeking to obtain or
enforce such right or benefit.
13. Amendment
No amendment or modification of this Agreement shall be deemed
effective unless and until executed in writing.
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14. Severability
If for any reason any provision of this Agreement shall be held
invalid, such invalidity shall not affect any other provision of this Agreement
not held so invalid, and all other such provisions shall to the full extent
consistent with law continue to in full force and effect. If any such provision
shall be held invalid in part, such invalidity shall in no way affect the rest
of such provision not held so invalid, and the rest of such provision, together
with all other provisions of this Agreement, shall likewise to the full extent
consistent with law continue in full force and effect.
15. Headings
The headings are included solely for convenience of reference and
shall not control the meaning or interpretation of any of the provisions of this
Agreement.
16. Interpretation
If any provision of this Agreement shall be the subject of a
dispute between the Bank and the Executive and a court or arbitrator to which
such dispute has been brought shall be unable to resolve which of two reasonable
interpretations of such provision is the proper interpretation thereof, then the
interpretation most favorable to the Executive shall control.
17. Governing Law
This Agreement has been executed and delivered in the State of New
Jersey and its validity, interpretation, performance and enforcement shall be
governed by and construed in accordance with the laws thereof applicable to
contracts executed and to be wholly performed in New Jersey.
18. Consent to Jurisdictions
Executive and the Bank irrevocably consent to the exclusive
jurisdiction of the Courts of Salem County, New Jersey and/or the United States
District Court for the District of New Jersey in any action or proceeding
pursuant to this Agreement and agree to service of process in accordance with
Section 19 herein.
19. Notices
All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered by
hand or mailed, certified or registered mail, return receipt requested, with
postage prepaid, to
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the following addresses or to such other address as either party may designate
by like notice:
A. If to Executive, to:
Xxxxxxx X. Xxxxxxxxx
Xxx Xxx Xxxxxxx
Xxxxxxxxxxxxx, XX 00000
B. If to Bank, to:
FIRST HOME SAVINGS BANK, S.L.A.
000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
C. In all cases, copies to:
Blank, Rome, Xxxxxxx & XxXxxxxx
0000 Xxxx Xxxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esquire
and to such other or additional Person or Persons as either party shall have
designated to the other party in writing by like notice.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed
and its seal to be affixed hereto by its officers thereunto duly authorized, and
the Executive has signed and sealed this Agreement, all as of the day and year
first above written.
ATTEST: FIRST HOME SAVINGS BANK, S.L.A.
/s/ Xxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxx
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Secretary Xxxxxxx X. Xxxxxx, President
WITNESS:
/s/ /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------- ------------------------
Xxxxxxx X. Xxxxxxxxx
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AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment, dated this 6th day of January, 1994, by and between
First Home Savings Bank, F.S.B., a savings and loan association incorporated
under laws of the United States (the "Bank"), and Xxxxxxx X. Xxxxxxxxx (the
"Executive").
W I T N E S S E T H:
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WHEREAS, the Bank, as the successor in interest by merger with First
Home Savings Bank, S.L.A., and Executive have entered into an Employment
Agreement made effective as of the 1st day of July, 1992 (the "Employment
Agreement"); and
WHEREAS, the Bank and Executive desire to make amendments to certain of
the terms of the Employment Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. All references in the Employment Agreement to "Bank" or
"Association" shall be deemed to refer to First Home Savings Bank, F.S.B.
2. Section 3 of the Employment Agreement shall be amended and restated
to read in its entirety as follows:
(a) Period of Employment
The period of the Executive's employment under this Agreement
shall commence as of the date of the merger of Fidelity Mutual Savings
and Loan Association ("Fidelity Mutual") with and into the Bank (the
"Effective Date") and shall, unless sooner terminated by the death of
the Executive, mutual agreement or pursuant to Section 7, continue for
a period of three (3) years therefrom, (such period being herein
referred to as the "Employment Period"), provided, however, subject to
Section 3(b), and if the Employment Period has not been terminated by
the death of the Executive, by mutual agreement or pursuant to Section
7, that on each December 31 during the Employment Period, the
Employment Period shall be extended for one year, so that at all times
the Employment Period on each January 1 during the term of this
Agreement shall be an unexpired period of three years, provided,
however, that such extension shall not go into effect unless and until
it has been reviewed and approved by the Board of Directors. The last
day of the Employment Period, as from time to time extended, and
without regard to any early termination pursuant to Section 7, is
hereinafter referred to as the "Expiration Date."
(b) Termination of Automatic Extension
The Executive or Bank may elect to terminate the automatic
extension of the Employment Period set forth in subsection 3(a) by
giving written notice of such election. Any notice given hereunder
shall be effective in the year in which the notice is given, if given
between January 1 and June 30 of any calendar year, and in the year
following the year in which the notice is given, if given between July
1 and December 31 of any calendar year. Upon effectiveness of any
notice given hereunder, Executive's employment under this Agreement
shall terminate on the Expiration Date (as last extended) or such
earlier date as may be determined pursuant to Section 7."
3. Section 7(h) of the Employment Agreement is amended to read in its
entirety as follows:
"(h) Notwithstanding anything contained herein to the contrary, the
Executive may terminate this Agreement by notice (which shall in no
event be less than 6 months) to the Bank on or after the date that the
Executive first becomes eligible to receive retirement benefits under
the Bank's Employee Stock Ownership Plan in which case benefits shall
be payable to the Executive in accordance with the provisions of such
plan, and all rights of the Executive under this Agreement shall cease.
4. Section 7(i)(1)(a) is amended to read in its entirety as follows:
"(a) 100% of the salary set forth in Section 4, as the same may have
been increased from time to time, payment of which shall be at the time
provided for in this Agreement as if the Executive's employment under
this Agreement has not terminated."
5. Section 7(k) of the Employment Agreement is amended to read in its
entirety as follows:
"(k) Limitation. Notwithstanding anything to the contrary contained
in this Section, Executive shall not receive and does hereby waive the
right to receive any amount upon his termination of employment (whether
pursuant to the terms of this Agreement or pursuant to any other policy
or arrangement) which would cause Executive to receive an amount which
exceeds three times the Executive's Average Annual Compensation (as
hereinafter defined). "Average Annual Compensation" means the average
of all Compensation (as hereinafter
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defined) paid to Executive by Bank and/or Fidelity Mutual during each
of the five full taxable years (i.e. January 1 to December 31)
preceding the year in which Executive's employment is terminated.
"Compensation" shall mean "Compensation" as defined in RB 27a,
"Executive Compensation and Employment Contracts", dated March 5, 1993,
promulgated by the Office of Thrift Supervision."
6. The Employment Agreement, as amended by this Amendment, shall remain
in full force and effect.
IN WITNESS WHEREOF, the Bank has caused this Amendment to be executed
and its seal to be affixed hereto by its officers thereunto duly authorized, and
the Executive has signed and sealed this Agreement, all as of the day and year
first above written.
FIRST HOME SAVINGS BANK, F.S.B.
By: /s/ Xxx X. Xxxxxxx
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Xxx X. Xxxxxxx, Chairman of the
Board
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
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