exhibit104122308.htm


     

    
      

      

    

    
      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 L. J.
Dailey (the “Executive”).

       

      WITNESSETH

       

       

      WHEREAS,
the Executive became an employee of the Bank upon the merger of Crowley Building
and Loan Association (“CB&L”) with and into the Bank pursuant to an
Agreement and Plan of Reorganization, dated as of March 27, 2006 (the “Merger
Agreement”);

       

      WHEREAS,
the Executive is currently employed as First Vice President and Crowley City
President, and the Executive and the Bank have previously entered into an
employment agreement dated March 27, 2006 (the “Prior Agreement”);

       

      WHEREAS,
the Bank desires to amend and restate the Prior Agreement in order to make
changes to comply with Section 409A of the Code (as defined herein), as well as
certain other changes; and

       

      WHEREAS,
the Executive is willing to serve the Bank on the terms and conditions
hereinafter set forth;

       

      NOW
THEREFORE, in consideration of the mutual agreements herein contained, and upon
the other terms and conditions hereinafter provided, 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)           Annual
Compensation.  The Executive=s
“Annual Compensation” for purposes of this Agreement shall be deemed to mean the
sum of the Executive=s
then current annual rate of base salary and any cash bonus paid to the Executive
by the Employer for the calendar year immediately preceding the calendar year in
which the Date of Termination occurs.

       

      (b)           Base
Salary.  ABase
Salary@
shall have the meaning set forth in Section 3(a) hereof.

       

      (c)           Cause.
Termination of the Executive=s
employment for ACause@
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.

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      (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, the date on which the Notice of Termination
is given, and (ii) if the Executive=s
employment is terminated for any other reason, the date specified in the Notice
of Termination.

       

      (f)           Disability.  ADisability@
shall be deemed to have occurred if the Executive: (i) is unable to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12 months, or (ii) is,
by reason of any medically determinable physical or mental impairment which can
be expected to result in death or can be expected to last for a continuous
period of not less than 12 months, receiving income replacement benefits for a
period of not less than three months under an accident and health plan covering
employees of the Employer.

       

      (g)           Effective
Date.  The AEffective
Date@
of the Agreement shall be the date first written above.

       

      (h)           Employment
Period. The Executive=s
AEmployment
Period@
under this Agreement shall be for a period of three years commencing on the
Effective Date.

       

      (i)           Good
Reason.  Termination by the Executive of the Executive’s
employment for “Good Reason” shall mean termination by the Executive based on
the occurrence of any of the following events:

       

      
        	
                 
      

              	
                (i)

              	
                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

              


      

       

      
        	
                 
      

              	
                (ii)

              	
                any
      material change in the geographic location at which the Executive must
      perform his services under this
Agreement;

              


      

       

      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.

       

      (k)           Notice of
Termination.  Any purported termination of the Executive=s
employment by the Employer 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 a written ANotice
of Termination@
to the other party hereto.  For purposes of this Agreement, a ANotice
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 the
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
Employer=s
termination of the Executive=s
employment for Cause, which shall be effective immediately; and (iv) is given in
the manner specified in Section 10 hereof.

       

      (l)           Retirement.  ARetirement@
shall mean voluntary termination by the Executive in accordance with the
Employer=s
retirement policies, including early retirement, generally applicable to its
salaried employees.

       

      2.           Term
of Employment.

       

      (a)           The
Employer hereby employs the Executive as First Vice President and Crowley 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.

       

      3.           Compensation
and Benefits.

       

      (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.

       

      4.           Expenses.  The
Employer shall reimburse the Executive or otherwise provide for or pay for all
reasonable expenses incurred by the Executive in furtherance of or in connection
with the business of the Employer, including, but not by way of limitation,
traveling expenses and all reasonable entertainment expenses, subject to such
reasonable documentation and other limitations as may be established by the
Employer. If such expenses are paid in the first instance by the Executive, the
Employer shall reimburse the Executive therefor.  Such reimbursement
shall be paid promptly by the Employer and in any event no later than March 15
of the year immediately following the year in which such expenses were
incurred.

       

      5.           Termination.

       

      (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.

       

      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 the Executive has the right to receive from the
Employer or its affiliates would constitute a Aparachute
payment@
under Section 280G of the Code, then the payments and benefits payable by the
Employer pursuant to Section 5 hereof shall be reduced by the minimum amount
necessary to result in no portion of the payments and benefits payable by the
Employer under Section 5 being non-deductible to the Employer pursuant to
Section 280G of the Code and subject to the excise tax imposed under Section
4999 of the Code. If the payments and benefits are required to be reduced, the
cash severance shall be reduced first, followed by a reduction in the fringe
benefits. 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
counsel selected by the Employer and paid by the Employer.  Such
counsel shall promptly prepare the foregoing opinion, but in no event later than
10 business days from the Date of Termination, and may use such actuaries as
such counsel deems necessary or advisable for the purpose.  Nothing
contained in this Section 6 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.

      
        
          
          

        

        
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      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,
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.

       

      8.           Withholding.  All
payments required to be made by the Employer hereunder to the Executive shall be
subject to the withholding of such amounts, if any, relating to tax and other
payroll deductions as the Employer may reasonably determine should be withheld
pursuant to any applicable law or regulation.

       

      9.           Assignability.  The
Employer may assign this Agreement and its rights and obligations hereunder in
whole, but not in part, to any corporation, association or other entity with or
into which the Employer may hereafter merge or consolidate or to which the
Employer may transfer all or substantially all of its assets, if in any such
case said corporation, association or other entity shall by operation of law or
expressly in writing assume all obligations of the Employer 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
Employer:             Board
of Directors

      Home
Bank

      503
Kaliste Saloom

      Lafayette,
Louisiana 70508

       

      To the
Executive:             L.
J. Dailey

      at the
address last appearing on

      the
personnel records of the Employer

      
        
          
          

        

        
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      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 and signed by the Executive and such officer or officers as may be
specifically designated by the Board of Directors of the Employer to sign on its
behalf; provided, however, that if the Employer determines, after a review of
the final regulations issued under Section 409A of the Code and all applicable
Internal Revenue Code guidance, that this Agreement should be further amended to
avoid triggering the tax and interest penalties imposed by Section 409A of the
Code, the Employer may amend this Agreement to the extent necessary to avoid
triggering the tax and interest penalties imposed by Section 409A of the Code.
No waiver by any party hereto at any time of any breach by the 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
Louisiana.

       

      13.           Nature of
Obligations.  Nothing contained herein shall create or require
the Employer 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 Employer hereunder, such right shall be no greater
than the right of any unsecured general creditor of the
Employer.

       

      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.           Changes in Statutes
or Regulations.  If any statutory or regulatory provision
referenced herein is subsequently changed or re-numbered, or is replaced by a
separate provision, then the references in this Agreement to such statutory or
regulatory provision shall be deemed to be a reference to such section as
amended, re-numbered or replaced.

       

      16.           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.

       

      17.           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.

       

      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 Federal Deposit Insurance Act (12 U.S.C. '1828(k))
and the regulations promulgated thereunder, including 12 C.F.R.
Part 359.

      
        
          
          

        

        
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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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      20.           Payment of Costs and
Legal Fees and Reinstatement of Benefits.  In the event any
dispute or controversy arising under or in connection with the Executive=s
termination is resolved in favor of the Executive, whether by judgment,
arbitration or settlement, the Executive shall be entitled to the payment of
(a) all reasonable legal fees incurred by the Executive in resolving such
dispute or controversy, and (2) any back-pay, including Base Salary,
bonuses and any other cash compensation, fringe benefits and any compensation
and benefits due to the Executive under this Agreement.

       

      21.           Entire
Agreement.  This Agreement embodies the entire agreement
between the Employer and the Executive with respect to the matters agreed to
herein.  As of the Effective Date, any and all prior agreements
between the Employer and the Executive with respect to the matters agreed to
herein, including the Prior Agreement, are hereby superseded and shall have no
force or effect.

      
        
          
          

        

        
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      IN WITNESS
WHEREOF, this Agreement has been executed as of the date first written
above.

       

      
        	 
      	
                HOME
      BANK

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                By:

              	/s/
      John W. Bordelon 
	 
      	 
      	
                John
      W. Bordelon

              
	 
      	 
      	
                President
      and Chief Executive Officer

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                EXECUTIVE

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                By:

              	/s/
      L. J. Dailey
	 
      	 
      	
                L.
      J. Dailey

              
	 
      	 
      	 
      


      

      
        
          
          

        

        
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