Exhibit 10.2(d)
AGREEMENT
AGREEMENT, dated this 21st day of March 1996, between Home Federal Savings
Bank (the "Savings Bank"), a federally chartered savings bank and Xxxxxxxxx X.
Xxxxxx (the "Executive").
WITNESSETH
WHEREAS, the Executive is presently an officer of Home Federal Corporation
(the "Corporation") and the Savings Bank (together, the "Employers");
WHEREAS, the Employers desire to be ensured of the Executive's continued
active participation in the business of the Employers and currently have a joint
agreement with the Executive dated July 1, 1995;
WHEREAS, in accordance with Office of Thrift Supervision ("OTS") Regulatory
Bulletin 27a, the Corporation and the Savings Bank desire to enter into separate
agreements with the Executive with respect to his employment by each of the
Employers; and
WHEREAS, in order to induce the Executive to remain in the employ of the
Employers and in consideration of the Executive's agreeing to remain in the
employ of the Employers, the parties desire to specify the severance benefits
which shall be due the Executive by the Savings Bank in the event that his
employment with the Savings Bank is terminated under specified circumstances.
NOW THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereby agree as follows:
1. Definitions. The following words and terms shall have the meanings
set forth below for the purposes of this Agreement:
(a) Base Salary. "Base Salary" shall have the meaning set forth in
Section 3(a) hereof.
(b) Cause. Termination of the Executive's employment for "Cause" shall
mean termination because of personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses) or final
cease-and-desist order or material breach of any provision of this Agreement.
(c) Change in Control of the Corporation. "Change in Control of the
Corporation" shall mean a change in control of a nature that would be required
to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended ("Exchange
Act"), or any successor thereto, whether or not the Corporation is registered
under the Exchange Act; provided that, without limitation, such a change in
control shall be deemed to have occurred if (i) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Corporation representing 25% or more of the
combined voting power of the Corporation's then outstanding securities; or (ii)
during any period of two consecutive years, individuals who at the beginning of
such period constitute the Board of Directors of the Corporation cease for any
reason to constitute at least a majority thereof unless the election, or the
nomination for election by stockholders, of each new director was approved by a
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period.
(d) Code. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(e) Date of Termination. "Date of Termination" shall mean (i) if the
Executive's employment is terminated for Cause or for Disability, the date
specified in the Notice of Termination, and (ii) if the Executive's employment
is terminated for any other reason, the date on which a Notice of Termination is
given or as specified in such Notice.
(f) Disability. Termination by the Savings Bank of the Executive's
employment based on "Disability" shall mean termination because of any physical
or mental impairment which qualifies the Executive for disability benefits under
the applicable long-term disability plan maintained by the Employers or any
subsidiary or, if no such plan applies, which would qualify the Executive for
disability benefits under the Federal Social Security System.
(g) Good Reason. Termination by the Executive of the Executive's
employment for "Good Reason" shall mean termination by the Executive within one
year following a Change in Control of the Corporation based on:
(i) Without the Executive's express written consent, a reduction by
either of the Employers in the Executive's Base Salary as the
same may be increased from time to time or, except to the extent
permitted by Section 3(b) hereof, a reduction in the package of
fringe benefits provided to the Executive, taken as a whole;
(ii) The principal executive office of either of the Employers is
relocated outside of the Hagerstown, Maryland area or, without
the Executive's express written consent, either of the Employers
require the Executive to be based anywhere other than an area in
which the Employers' principal executive office is located,
except for required travel on business of the Employers to an
extent substantially consistent with the Executive's present
business travel obligations;
(iii) Any purported termination of the Executive's employment for
Cause, Disability or Retirement which is not effected pursuant to
a Notice of Termination satisfying the requirements of paragraph
(i) below; or (iv) The failure by the Savings Bank to obtain the
assumption of and agreement to perform this Agreement by any
successor as contemplated in Section 9 hereof.
(h) IRS. IRS shall mean the Internal Revenue Service.
(i) Notice of Termination. Any purported termination of the Executive's
employment by the Savings Bank for any reason, including without limitation for
Cause, Disability or Retirement, or by the Executive for any reason, including
without limitation for Good Reason, shall be communicated by written "Notice of
Termination" to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a dated notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so indicated, (iii)
specifies a Date of Termination, which shall be not less than thirty (30) nor
more than ninety (90) days after such Notice of Termination is given, except in
the case of the Savings Bank termination of Executive's employment for Cause,
which shall be effective immediately; and (iv) is given in the manner specified
in Section 10 hereof.
(j) Retirement. Termination by the Employers of the Executive's
employment based on "Retirement" shall mean voluntary termination by the
Executive in accordance with the Employers' retirement policies, including early
retirement, generally applicable to their salaried employees.
2. Term of Employment.
(a) The Savings Bank hereby employs the Executive as Senior Vice President
and Chief Financial Officer and Executive hereby accepts said employment and
agrees to render such services to the Savings Bank on the terms and conditions
set forth in this Agreement. The term of employment under this Agreement shall
be for three years, commencing on the date of this Agreement and, upon approval
of the Board of Directors of the Savings Bank, shall extend for an additional
year on each annual anniversary of the date of this Agreement such that at any
time the remaining term of this Agreement shall be from two to three years.
Prior to the first annual anniversary of the date of this Agreement and each
annual anniversary thereafter, the Board of Directors of the Savings Bank shall
consider and review (with appropriate corporate documentation thereof, and after
taking into account all relevant factors, including the Executive's performance
hereunder) extension of the term under this Agreement, and the term shall
continue to extend each year if the Board of Directors approves such extension
unless the Executive gives written notice to the Employers of the Executive's
election not to extend the term, with such written notice to be given not less
than thirty (30) days prior to any such anniversary date. If the Board of
Directors elects not to extend the term, it shall give written notice of such
decision to the Executive not less than thirty (30) days prior to any such
anniversary date. If any party gives timely notice that the term will not be
extended as of any annual anniversary date, then this Agreement shall terminate
at the conclusion of its remaining term. References herein to the term of this
Agreement shall refer both to the initial term and successive terms.
(b) During the term of this Agreement, the Executive shall perform such
executive services for the Savings Bank as may be consistent with his titles and
from time to time assigned to him by the Savings Bank's Board of Directors.
3. Compensation and Benefits.
(a) The Employers shall compensate and pay Executive for his services
during the term of this Agreement at a minimum base salary of $83,500 per year
("Base Salary"), which may be increased from time to time in such amounts as may
be determined by the Boards of Directors of the Employers and may not be
decreased without the Executive's express written consent. For purposes hereof,
Base Salary shall include any fees received for serving as a director of the
Employers.
(b) During the term of the Agreement, Executive shall be entitled to
participate in and receive the benefits of any pension or other retirement
benefit plan, profit sharing, stock option, employee stock ownership, or other
plans, benefits and privileges given to employees and executives of the
Employers, to the extent commensurate with his then duties and responsibilities,
as fixed by the Boards of Directors of the Employers. The Savings Bank shall not
make any changes in such plans, benefits or privileges which would adversely
affect Executive's rights or benefits thereunder, unless such change occurs
pursuant to a program applicable to all executive officers of the Savings
Bank and does not result in a proportionately greater adverse change in the
rights of or benefits to Executive as compared with any other executive officer
of the Savings Bank. Nothing paid to Executive under any plan or arrangement
presently in effect or made available in the future shall be deemed to be in
lieu of the salary payable to Executive pursuant to Section 3(a) hereof.
(c) During the term of this Agreement, Executive shall be entitled to paid
annual vacation in accordance with the policies as established from time to time
by the Boards of Directors of the Employers, which shall in no event be less
than three weeks per annum. Executive shall not be entitled to receive any
additional compensation from the Employers for failure to take a vacation, nor
shall Executive be able to accumulate unused vacation time from one year to the
next, except to the extent authorized by the Boards of Directors of the
Employers.
(d) In the event of the Executive's death during the term of this
Agreement, the Executive's spouse, estate, legal representative or named
beneficiaries (as directed by the Executive in writing) shall be paid on a
monthly basis the greater of (i) the death benefits which may be available under
one or more policies of the Employers or (ii) the Executive's Base Salary (as
defined in Section 3(a) hereof) in effect at the time of the Executive's death
for a period of eighteen (18) months from the date of the Executive's death.
(e) The Executive's compensation, benefits and expenses which are required
to be provided under this Agreement shall be paid by the Corporation and the
Savings Bank in the same proportion as the time and services actually expended
by the Executive on behalf of each respective Employer.
4. Expenses.
The Employers shall reimburse Executive or otherwise provide for or pay for
all reasonable expenses incurred by Executive in furtherance of, or in
connection with the business of the Employers, including, but not by way of
limitation, traveling expenses and all reasonable entertainment expenses
(whether incurred at the Executive's residence, while traveling or otherwise),
subject to such reasonable documentation and other limitations as may be
established by the Boards of Directors of the Employers. If such expenses are
paid in the first instance by Executive, the Employers shall reimburse the
Executive therefor.
5. Termination.
(a) The Savings Bank shall have the right, at any time upon prior Notice
of Termination, to terminate the Executive's employment hereunder for any
reason, including without limitation termination for Cause, Disability or
Retirement, and Executive shall have the right, upon prior Notice of
Termination, to terminate his employment hereunder for any reason.
(b) In the event that (i) Executive's employment is terminated by the
Savings Bank for Cause, or (ii) Executive terminates his employment hereunder
other than for Good Reason, Executive shall have no right pursuant to this
Agreement to compensation or other benefits for any period after the applicable
Date of Termination. In the event the Executive's employment is terminated due
to the Executive's death, the Executive's rights shall be as provided in Section
3(d) hereof.
(c) In the event that (i) Executive's employment is terminated by the
Savings Bank for other than Cause, Disability, Retirement or the Executive's
death or (ii) such employment is terminated by the Executive due to a material
breach of this Agreement by the Savings Bank, which breach has not been cured
within fifteen (15) days after a written notice of non-compliance has been
given by the Executive to the Employers, then the Savings Bank shall
(A) pay to the Executive, in equal monthly installments beginning
with the first business day of the month following the Date of Termination,
a cash severance amount equal to that portion of the Executive's Base
Salary which would be payable by the Savings Bank to the Executive pursuant
hereto for a period ending at the later of (i) the expiration of the
remaining term of employment pursuant hereto prior to the Notice of
Termination or (ii) eighteen (18) months, and
(B) maintain and provide for a period ending at the earlier of (i)
the expiration of the remaining term of employment pursuant hereto prior to
the Notice of Termination or (ii) the date of the Executive's full-time
employment by another employer (provided that the Executive is entitled
under the terms of such employment to benefits substantially similar to
those described in this subparagraph (B)), at no cost to the Executive, the
Executive's continued participation in all group insurance, life insurance,
health and accident, disability and other employee benefit plans, programs
and arrangements offered by the Savings Bank in which the Executive was
entitled to participate immediately prior to the Date of Termination (other
than stock option and restricted stock plans of the Employers), provided
that in the event that the Executive's participation in any plan, program
or arrangement as provided in this subparagraph (B) is barred, or during
such period any such plan, program or arrangement is discontinued or the
benefits thereunder are materially reduced, the Savings Bank shall arrange
to provide the Executive with benefits substantially similar to those which
the Executive was entitled to receive under such plans, programs and
arrangements immediately prior to the Date of Termination.
(d) In the event of the failure by either of the Employers to elect or to
re-elect or to appoint or to re-appoint the Executive to the offices of Vice
President and Chief Financial Officer of the Company and Senior Vice President
and Chief Financial Officer of the Savings Bank or a material adverse change
made by either of the Employers in the Executive's functions, duties or
responsibilities as Vice President and Chief Financial Officer of the Company
and Senior Vice President and Chief Financial Officer of the Savings Bank
without the Executive's express written consent, the Executive shall be entitled
to terminate his employment hereunder and shall be entitled to the payments and
benefits provided for in Section 5(c)(A) and (B).
(e) In the event that the Executive terminates his employment hereunder
for Good Reason, then the Savings Bank shall, subject to the provisions of
Section 6 hereof, if applicable (i) pay to the Executive, in thirty-six (36)
equal monthly installments beginning with the first business day of the month
following the Date of Termination, a cash severance amount equal to three (3)
times that portion of the Executive's Base Salary paid by the Savings Bank, and
(ii) maintain the benefits provided for in Section 5(c)(B).
(f) In the event that the Executive takes employment with any banking
institution or affiliate thereof in the Corporation and the Bank's market area
after the Date of Termination, the Executive shall have no right pursuant to
this Agreement to continue to receive compensation or other benefits hereunder,
effective with the first business day of the month following the date the
Corporation and the Bank obtain confirmation of such employment, provided,
however, that if the Executive takes such employment following the Executive's
termination of employment with the Corporation and the Bank (i) following a
Change in Control, as defined in Section 1(c) hereof, or (ii) due to a material
breach of this Agreement by the Savings Bank, the compensation and benefits
provided for hereunder shall remain in full force and effect.
(g) Upon completion of the term of employment under this Agreement, as
defined in Section 2(a) hereof, the Executive shall be entitled to receive, and
the Savings Bank shall pay to the Executive in one (1) lump sum payment on the
date of termination of employment, a cash severance amount equal to one and
one-half (1.5) times the Executive's Base Salary in the year of such termination
of employment. In addition to such payment, the Employers shall provide
continued medical insurance in the Employers' health plan for the benefit of the
Executive, his spouse and dependents for a period of eighteen (18) months
beginning with the first business day of the month following the date of such
termination of employment, and such insurance shall be comparable to that which
is provided to the Executive as of the date of this Agreement notwithstanding
anything to the contrary in this Agreement and regardless of whether the
Executive is eligible to participate in the Employers' health plan. In the event
of the Executive's death before the completion of such eighteen (18) month
period, the Employers shall provide the Executive's spouse and dependents
continued medical insurance in the Employers' health plan comparable to that
which is being provided to the Executive's spouse and dependents at such time
for the remainder of such period.
6. Limitation of Benefits under Certain Circumstances.
If the payments and benefits pursuant to Section 5 hereof, either alone or
together with other payments and benefits which Executive has the right to
receive from the Savings Bank, would constitute a "parachute payment" under
Section 280G of the Code, the payments and benefits payable by the Savings Bank
pursuant to Section 5 hereof shall be reduced, in the manner determined by the
Executive, by the amount, if any, which is the minimum necessary to result in no
portion of the payments and benefits paid by the Savings Bank under Section 5
being non-deductible to the Savings Bank pursuant to Section 280G of the Code
and subject to the excise tax imposed under Section 4999 of the Code. The
parties hereto agree that the payments and benefits payable pursuant to this
Agreement to the Executive upon termination shall be limited to three times the
Executive's average annual compensation (based upon the most recent five taxable
years) in accordance with OTS Regulatory Bulletin 27a. The determination of any
reduction in the payments and benefits to be made pursuant to Section 5 shall be
based upon the opinion of independent tax counsel selected by the Savings Bank's
independent public accountants and paid by the Savings Bank. Such counsel shall
be reasonably acceptable to the Savings Bank and the Executive; shall promptly
prepare the foregoing opinion, but in no event later than thirty (30) days from
the Date of Termination; and may use such actuaries as such counsel deems
necessary or advisable for the purpose. Nothing contained herein shall result in
a reduction of any payments or benefits to which the Executive may be entitled
upon termination of employment under any circumstances other than as specified
in this Section 6, or a reduction in the payments and benefits specified in
Section 5 below zero.
7. Mitigation; Exclusivity of Benefits.
(a) The Executive shall not be required to mitigate the amount of any
benefits hereunder by seeking other employment or otherwise, nor shall the
amount of any such benefits be reduced by any compensation earned by the
Executive as a result of employment by another employer after the Date of
Termination or otherwise.
(b) The specific arrangements referred to herein are not intended to
exclude any other benefits which may be available to the Executive upon a
termination of employment with the Employers pursuant to employee benefit plans
of the Employers or otherwise.
8. Withholding. All payments required to be made by the Savings Bank
hereunder to the Executive shall be subject to the withholding of such amounts,
if any, relating to tax and other payroll deductions as the Savings Bank may
reasonably determine should be withheld pursuant to any applicable law or
regulation.
9. Assignability. The Savings Bank may assign this Agreement and their
rights and obligations hereunder in whole, but not in part, to any corporation,
bank or other entity with or into which the Savings Bank may hereafter merge or
consolidate or to which the Savings Bank may transfer all or substantially all
of their assets, if in any such case said corporation, bank or other entity
shall by operation of law or expressly in writing assume all obligations of the
Savings Bank hereunder as fully as if it had been originally made a party
hereto, but may not otherwise assign this Agreement or its rights and
obligations hereunder. The Executive may not assign or transfer this Agreement
or any rights or obligations hereunder.
10. Notice. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
To the Corporation: Secretary
Home Federal Corporation
000-000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
To the Savings Bank: Secretary
Home Federal Savings Bank
000-000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
To the Executive: Xxxxxxxxx X. Xxxxxx
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
11. Amendment; Waiver. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and such officer or officers as may be
specifically designated by the Board of Directors of the Savings Bank to sign on
its behalf. No waiver by any party hereto at any time of any breach by any
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
12. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the United States
where applicable and otherwise by the substantive laws of the State of Maryland.
13. Nature of Obligations. Nothing contained herein shall create or
require the Savings Bank to create a trust of any kind to fund any benefits
which may be payable hereunder, and to the extent that the Executive acquires a
right to receive benefits from the Savings Bank hereunder, such right shall be
no greater than the right of any unsecured general creditor of the Savings Bank.
14. Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
17. 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.
Sect. 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 Executive is suspended from office and/or temporarily prohibited
from participating in the conduct of the Savings Bank's affairs pursuant to
notice served under Section 8(e)(3) or Section 8(g)(1) of the Federal Deposit
Insurance Act ("FDIA")(12 U.S.C. Sect. 1818(e)(3) and 1818(g)(1)), the 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 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 Executive is removed from office 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 Section 8(g)(1) of the FDIA (12 U.S.C. Sect. 1818(e)(4)
and (g)(1)), all obligations of the Savings Bank under this Agreement shall
terminate as of the effective date of the order, but vested rights of the
Executive and the Saving Bank as of the date of termination shall not be
affected.
(c) If the Savings Bank is in default, as defined in Section 3(x)(1) of
the FDIA (12 U.S.C. Sect. 1813(x)(1)), all obligations under this Agreement
shall terminate as of the date of default, but vested rights of the Executive
and the Savings Bank 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. Sect. 563.39(b)(5) (except to the extent that it is determined that
continuation of the Agreement for the continued operation of the Savings Bank is
necessary): (i) by the Director of the OTS, or his/her designee, at the time the
Federal Deposit Insurance Corporation ("FDIC") 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 (12 U.S.C. Sect. 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 Savings Bank or when the Savings Bank is determined by the Director of
the OTS to be in an unsafe or unsound condition, but vested rights of the
Executive and the Employers as of the date of termination shall not be affected.
18. Regulatory Prohibition. Notwithstanding any other provision of this
Agreement to the contrary, any payments made to the Executive pursuant to this
Agreement, or otherwise, are subject to and conditioned upon their compliance
with Section 18(k) of the FDIA (12 U.S.C. Sect. 1828(k)) and any regulations
promulgated thereunder.
19. Entire Agreement. This Agreement embodies the entire agreement
between the Savings Bank and the Executive with respect to the matters agreed to
herein. All prior agreements between the Savings Bank and the Executive with
respect to the matters agreed to herein, including without limitation the
Employment Agreement between the Employers and the Executive dated as of July 1,
1995, are hereby superseded and shall have no force or effect. Notwithstanding
the foregoing, nothing contained in this Agreement shall affect the agreement of
even date being entered into between the Corporation and the Executive.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
Attest: HOME FEDERAL SAVINGS BANK
__________________________ By: /s/ Xxxxxxxx X. Xxxxxxxxx
Xxxxxxxx X. Xxxxxxxxx,
Chairman of the Board of Directors
EXECUTIVE
By: /s/ Xxxxxxxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxxx
