Exhibit 10.1


    
      
        

      

    


    EMPLOYMENT
      AGREEMENT

    


    This
      Employment Agreement (the “Agreement”) is dated for reference purposes and
      entered into as of December 1, 2005 (the “Effective Date”), by and between Bank
      of Internet USA, a federal savings bank (the “Bank”), having a principal place
      of business at 12777 High Bluff Drive, Suite 100, San Diego, CA 92130, and
      Terry
      M. Harris (the “Executive”), whose address is 427 Rosario Lane, White Lake,
      Michigan 48386. Bank and Executive are sometimes collectively referred to in
      this Agreement as the “Parties.” As used in this Agreement, the term “Effective
      Date” means the date this Agreement becomes effective.

    


    RECITALS

    


    1.    
Bank
      desires to employ Executive and avail itself of his skill, knowledge and
      experience in the management of Bank's business.

    


    2.    
The
      Parties desire to set forth in this Agreement the terms of Executive's
      employment by Bank.

    


    The
      Parties therefore agree as follows:

    


    
      	 	
              A.

            	
              TERM
                OF EMPLOYMENT

            


    

    


    Bank
      employs Executive to perform the duties described in this Agreement, and
      Executive accepts such employment, for a term of one year commencing on the
      Effective Date and ending on the day preceding the one year anniversary of
      the
      Effective Date, except (i) that the Term of this Agreement shall be renewed
      without further notice for a one year period commencing on the annual
      anniversary date of the Effective Date (the “Anniversary Date”) and on each
      subsequent Anniversary Date following any such one year period of employment,
      and (ii) this Agreement may be terminated prior to the end of such Term by
      Bank
      or Employee in accordance with and subject to the terms of Paragraph F.
      (Termination) of this Agreement, including, but not limited to, Paragraph F.2.a
      providing Executive with Severance Payment (as defined therein) upon termination
      of this Agreement by Bank other than for cause. When used in this Agreement,
      “Term” shall refer to the entire period of employment of Executive by Bank under
      this Agreement.

    


    
      	 	
              B.

            	
              DUTIES
                OF EXECUTIVE

            


    

    


    Subject
      to the powers and directions of the policies, procedures and directives of
      the
      board of directors, as adopted and modified from time to time, Executive shall
      perform the duties and shall have the titles of “Vice President and Chief Credit
      Officer.” During the Term, Executive shall perform exclusively for Bank the
      services contemplated in this Agreement to be performed by Executive,
      faithfully, diligently and to the best of Executive's ability, consistent with
      the highest and best standards of the banking industry and in compliance with
      all applicable laws and regulations and the Bank's federal stock charter and
      bylaws. Except as permitted by the prior written consent of Bank's board of
      directors, Executive shall devote Executive's entire working time, ability
      and
      attention to the business of Bank during the Term.


    
      
        
        

      

      
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              C.

            	
              COMPENSATION

            


    

    


    1.    Base
      Salary.  In
      consideration of Executive's services to be performed under this Agreement
      and
      commencing as of the Effective Date, Bank shall pay or cause to be paid to
      Executive a base salary at the rate of $150,000 per annum, payable in equal
      installments in conformity with Bank's normal payroll periods. Executive's
      salary shall be reviewed by the board of directors from time to time at its
      discretion and Executive shall receive such salary increases, if any, as the
      board of directors, in its sole discretion, shall determine.

     

    
      
                        2.    Pre-Tax
          Net Income Benefit.  The
          Bank has advised the
          Executive that at the time this Agreement is being entered into the Compensation
          Committee of the Board of Directors is committed
          to
          developing a new benefit program for senior executives based on the pre-tax
          net
          income of the Bank and that the full Board of Directors expects to adopt
          such
          new program in due course prior
          to
          the end of the current fiscal year
          (the
“New Pre-Tax Net Income Benefit”). The Bank has further advised Executive that
          the current benefit for senior executives based on pre-tax net income of
          the
          Bank will result in no pre-tax net income benefit for such senior executives
          for
          the Bank’s fiscal year ending June 30, 2006, and that even if the Executive were
          to commence participating as of the Effective
          Date in
          the current program on the same basis as such senior executives, Executive
          would
          not receive any pre-tax income benefit for the Bank’s fiscal year ending June
          30, 2006. Executive understands and agrees that no benefit based on pre-tax
          net
          income of the Bank for the Bank’s fiscal year ending June 30, 2006 will be paid
          under this Agreement. When adopted, Executive shall be entitled to participate
          in the New Pre-Tax Net Income Benefit on the same basis generally as the
          other
          senior executive officers of the Bank and specifically, Executive shall
          participate in the New Pre-Tax Net Income Benefit on the same basis as
          the Chief
          Financial Officer of the Bank. Upon request the Bank shall provide to Executive
          copies of the current pre-tax net income benefit available to senior executives
          of the Bank and when adopted by the Board of Directors, the Bank shall
          deliver
          to Executive a true and correct copy of the New Pre-Tax Net Income
          Benefit.

      

    

    


    
      	 	
              D.

            	
              EXECUTIVE
                BENEFITS

            


    

    


    1.    Vacation.  Executive
      shall be
      entitled to vacation as prescribed in the Bank's Employee Manual maintained
      on
      the Bank's Intranet. In the event this Agreement is terminated pursuant to
      Paragraph F.2, Bank reserves the right to require Executive to take any unused
      vacation time prior to the Date of Termination (as defined in Paragraph
      F.2).

    


    2.     Directors
      and Officers Liability Insurance.  Bank shall provide
      for Executive,
      at Bank's expense, coverage under a directors and officers liability insurance
      policy in such amounts and on such terms as may be approved by Bank's board
      of
      directors and as may be consistent with such coverage provided by Bank for
      its
      other officers and directors.

    


    3.     Group
      Insurance Benefits and Death Benefit.  Executive shall participate
      in
      all group insurance plans provided by Bank for all of its senior executive
      officers at Bank's expense to the same extent and on the same terms as Bank's
      other senior executive officers. Throughout the Term, the Bank shall provide
      at
      its sole cost a death benefit on the life of Executive in an amount equal to
      three times Executive's then-current annual salary, subject to Executive’s
      qualification for and the Bank’s purchase of Bank-owned life
      insurance.


    
      
        
        

      

      
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    4.    Stock
      Options.  As of
      the Effective Date, BofI Holding, Inc. a Delaware corporation (“Holding”), the
      sole shareholder of Bank, shall grant to Executive stock options pursuant to
      the
      BofI Holding, Inc. 2004 Stock Incentive Plan (the “Plan”) and as memorialized in
      a Stock Option Award Agreement and Notice of Stock Option Award (the “Award
      Agreement”), to be dated effective as of the Effective Date (the “Grant”). The
      Award Agreement evidencing the Grant shall provide for, among other things,
      the
      grant to Executive of 20,000 stock options with an exercise price equal to
      the
      per share fair market value of the common stock of Holding on the date of the
      Grant and which shall vest over a four year period commencing on the Effective
      Date as described in the Award Agreement. Notwithstanding the terms of the
      Plan,
      in the event that the Bank terminates Executive under this Agreement for any
      reason other than for cause pursuant to Paragraph F.1 or in the event
      Executive's death or disability causes the termination of this Agreement, all
      of
      Executive's stock options issued pursuant to the Grant and any subsequently
      issued grant of stock options under the Plan, including all stock options held
      by Executive that are not otherwise vested at such time, shall become fully
      vested and Executive may exercise such vested stock options, in whole or in
      part, at any time within the terms of the Plan. In the event that Executive
      terminates this Agreement, Executive shall be entitled to exercise only those
      stock options that are vested as of the Date of Termination (as defined in
      Paragraph F.2, below), and may be exercised within a three month period in
      accordance with the Plan. Neither Bank nor Holding shall enter into any
      transaction during or after the Term that would have the effect of canceling
      any
      of Executive's issued under the Grant.

    


    5.    Retirement,
      Profit Sharing and Other Plans.  Executive shall be
      entitled to
      participate in any retirement plans, profit-sharing plans, salary deferral
      and
      other deferred compensation plans, medical expense reimbursement plans and
      other
      similar plans that Bank may establish with respect to all employees; provided,
      however, that nothing herein shall require Bank to establish or maintain any
      of
      such plans.

    


    
      	 	
              E.

            	
              BUSINESS
                EXPENSES AND REIMBURSEMENT

            


    

     

    1.     Business
      Expenses.  In
      addition to Bank's payment or reimbursement of costs of the type described
      in
      Paragraph E.2, Bank shall pay or reimburse Executive for any ordinary and
      necessary business expenses incurred by Executive in the performance of his
      duties and in acting for or on behalf of Bank during the Term, provided that:
      (a) each such expenditure is of a nature qualifying it as a proper deduction
      on
      the federal and state income tax returns of Bank as a business expense and
      not
      as deductible compensation to Executive, (b) Executive furnishes to Bank
      adequate records and other documentary evidence required by federal and state
      statutes and regulations issued by the appropriate taxing authorities for the
      substantiation of such expenditures and deductible business expenses of Bank,
      and (c) Executive's expense reimbursement reports are submitted for approval
      in
      accordance with Bank's internal policies.

    


    2.    Additional
      Expenses.  Bank
      shall pay or reimburse Executive for the costs and expenses set forth below,
      subject to the following requirements: (i) Executive shall comply with the
      Bank's expense payment or reimbursement guidelines and procedures as the Bank
      may amend such guidelines and procedures or may adopt new guidelines and
      procedures from time to time, and (ii) prior to the Bank becoming liable for
      any
      expenses or reimbursement relating to equipment, publications, education,
      training or professional organizations pursuant to subparagraphs a. through
      f., below, any such expenses or reimbursement shall be approved by Bank's
      board of directors or any committee or person authorized by the board of
      directors to grant such approval, in advance of incurring any such expenses.
      Subject to such prior approval of incurring expenses or reimbursement and to
      compliance with Bank's payment or reimbursement procedures, Bank's obligation
      to
      make any such payment or reimbursement pursuant to this paragraph shall not
      be
      contingent on whether or to what extent a particular expense may constitute
      a
      deductible business expense of Bank or be excludable from Executive's taxable
      compensation.


    
      
        
        

      

      
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    a.    Automobile
      Allowance.  Standard
      business mileage
      reimbursement will be provided to Executive.

    


    b.    Parking.  Bank
      shall pay or
      reimburse Executive for his reasonable automobile parking expenses during the
      Term.

    


    c.    Equipment.  Bank
      shall pay or
      reimburse Executive for costs incurred by Executive during the Term for a
      digital cellular telephone (including the initial purchase price and connection
      charges as well as all business-related air charges), and other equipment as
      needed. Such equipment shall be the property of the Bank and upon termination
      of
      this Agreement for any reason, all of such equipment shall be returned to Bank,
      as more particularly provided in Paragraph G.3.

    


    d.    Publications.  Bank
      shall reimburse
      Executive for the costs incurred by Executive during the term for subscriptions
      to business-related periodical publications that Executive reasonably considers
      useful and relevant to the discharge of his duties for Bank.

    


    e.    Education
      and Training.  Bank
      shall pay for or
      reimburse Executive for costs incurred by Executive during the Term for
      attending business-related seminars, training programs, conferences and
      conventions that Executive reasonably considers useful and relevant to the
      discharge of his duties to Bank.

    


    f.    Professional
      Organizations.  Bank
      shall pay for or
      reimburse Executive for costs incurred by Executive during the Term for
      membership fees and dues of professional organizations that Executive reasonably
      considers useful and relevant to the discharge of his duties for
      Bank.

    


    g.    Relocation
      and Transition Costs.  The
      Bank shall pay the
      sum of $20,000 for the cost of moving and home sale expenses pertaining to
      relocating Executive and his family to the San Diego area. Such amount shall
      be
      paid in two installments of $10,000 each: (i) the first installment of $10,000
      shall be paid within 30 days of the Effective Date, and (ii) the second
      installment of $10,000 shall be paid within 30 days after Executive gives the
      Bank notice that Executive’s current residence in White Lake, Michigan has been
      sold and that Executive’s immediate family has completed their permanent move to
      the San Diego area. In addition, during the time that Executive’s immediate
      family remains resident in Michigan, Executive shall be reimbursed for the
      actual cost of air fare for up to three round trips between San Diego,
      California and Detroit, Michigan at the air fare rate that would be charged
      for
      such trips at such time by Southwest Airlines.


    
      
        
        

      

      
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              F.

            	
              TERMINATION

            


    

    


    1.    Termination
      for Cause.  Bank
      may terminate this Agreement for cause at any time without advance notice and
      without further obligation or liability to Executive, by action of Bank's board
      of directors:

    


    a.    If
      Executive materially fails to perform his duties in a satisfactory manner or
      habitually neglects his duties; provided, however, that before any termination
      pursuant to this subparagraph a. shall become effective, (i) Bank shall have
      given Executive written notice setting forth the specific grounds for
      termination (“Warning Notice”), (ii) Bank shall have met and informed Executive
      of the grounds for termination, of the extent and nature of his unsatisfactory
      or negligent performance and of what Executive must do to correct such
      deficiencies, and (iii) Executive shall have been afforded a reasonable
      opportunity over a period of not less than forty-five (45) days from the date
      of
      the Warning Notice to correct the unsatisfactory or negligent performance
      described in the Warning Notice to the satisfaction of the board of directors,
      provided, however, that Executive shall be terminated at the end of such period
      if Executive fails to correct his deficient performance in the manner prescribed
      by and to the reasonable satisfaction of the board of directors;

    


    b.    If
      Executive is convicted of illegal activity which materially adversely affects
      Bank's reputation in the community or which evidences the lack of Executive's
      fitness or ability to perform Executive's duties as determined by the board
      of
      directors, in good faith;

    


    c.    If
      Executive commits any act which causes termination of coverage under Bank's
      Bankers Blanket Bond as to Executive, as distinguished from termination of
      coverage as to Bank as a whole;

    


    d.    If
      Executive dies;

    


    e.    If
      Executive is found to be physically or mentally incapable of performing
      Executive's duties for a consecutive period of 90 days or greater by the board
      of directors, reasonably and in good faith. Termination pursuant to this
      subparagraph e. shall become effective immediately on written notice of
      termination given by Bank to Executive after the expiration of such 90-day
      period;

    


    f.    If
      Bank
      is closed or taken over by any of the bank regulatory authorities having
      jurisdiction over Bank's activities; or

    


    g.    If
      any
      bank regulatory authority should successfully exercise its cease and desist
      powers to remove Executive from office.

    


    The
      Parties understand and agree that notwithstanding anything to the contrary
      contained in this Agreement: (1) this Agreement is subject to the requirements
      and terms set forth in the regulations of the Office of Thrift Supervision
      (“OTS”) contained in 12 C.F.R. Section 563.39; (2) specifically, without
      limitation, the required provisions set forth in 12 C.F.R. Section 563.39(b)
      are
      incorporated by reference in this Agreement as if set forth in full; (3) to
      the
      greatest extent possible, this Agreement shall be interpreted so as to be
      consistent with said regulation; and (4) in the event of conflict or
      inconsistency between the terms of this Agreement and said regulation, the
      required provisions of said OTS regulation shall supersede any inconsistent
      or
      conflicting provisions of this Agreement. The termination of this Agreement
      for
      any of the reasons set forth in 12 C.F.R. Section 563.39(b) shall be considered
      termination for cause pursuant to this Paragraph F.1.


    
      
        
        

      

      
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    2.    Termination
      at Will.  Notwithstanding anything
      to the
      contrary contained in this Agreement, this Agreement may be terminated by either
      party at any time upon 30 days' written notice of termination to the other
      Party
      (“Notice of Termination”). As used in this Paragraph F.2, “Date of Termination”
means the thirtieth (30th) day following the date on which Notice of Termination
      is given.

    


    a.    Termination
      by Bank.  In
      the
      event Bank elects to terminate this Agreement by giving Notice of Termination
      prior to the expiration of the Term, Executive shall be entitled to compensation
      from Bank as follows: (i) Bank shall pay Executive his normal compensation
      then
      in effect through the Date of Termination; and (ii) Bank shall pay to Executive
      a severance payment equal to his then-current base monthly salary, multiplied
      by
      12 (the “Severance Payment”), which amount shall be paid by the Bank in either
      of the following two ways, in the sole discretion of the board of directors:
      (A)
      the Bank may pay the Severance Payment in 12 equal installments during the
      succeeding 12 month period beginning on the Date of Termination (the “Severance
      Period”) in conformity with Bank's normal payroll periods, or (B) the Bank may
      pay the Severance Payment in one lump sum, subject to such withholding and
      other
      deductions as may be required by applicable law. In addition, Executive shall
      be
      entitled to the continuation of the group insurance benefits provided under
      Paragraph D.3, subject to Executive's reasonable cooperation with Bank, until
      the first to occur of: (x) the expiration of the Severance Period, or (y)
      Executive's commencement of work for a new employer that provides group medical
      insurance benefits to Executive. Executive's acceptance of new employment or
      earnings from other sources during the Severance Period shall not affect Bank's
      obligation to make the Severance Payment as provided above. At any time between
      Bank giving Executive Notice of Termination and the Date of Termination, Bank,
      in its sole discretion, may direct Executive to cease performing services for
      Bank or to absent himself from Bank's premises and operations, provided that
      Bank shall nonetheless compensate Executive as provided above.

    


    b.    Termination
      by Executive.  In
      the
      event Executive elects to terminate this Agreement by giving Notice of
      Termination prior to the expiration of the Term, Executive shall be entitled
      to
      such compensation as may be due and payable to him through and including such
      Date of Termination, but Executive shall not be entitled to any other
      compensation except as may be required by law or by written agreement, including
      this Agreement and the Deferred Comp Plan.

    


    3.    Effect
      of Termination.  In the event of the
      termination
      of this Agreement prior to the completion of the Term for any of the reasons
      specified in Paragraphs F.1 and F.2, Executive shall be entitled to the
      compensation earned by Executive prior to the Date of Termination, as provided
      in this Agreement, computed pro
      rata
      up to
      and including the Date of Termination, but Executive shall not be entitled
      to
      any further compensation or other benefits for services rendered after the
      Date
      of Termination, except as otherwise set forth in this Agreement. As used in
      this
      Paragraph F.3, “Date of Termination” includes the effective date of any
      termination, whether pursuant to Paragraph F.1 or F.2.


    
      
        
        

      

      
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              G.

            	
              GENERAL
                PROVISIONS

            


    

    


    1.    Solicitation
      of Customers and Employees.  For any period during
      which
      Executive receives any salary from Bank and for a one year period following
      any
      termination of Executive from Bank, Executive shall not solicit any customers
      or
      employees of Bank to move their banking or employment relationships from Bank.
      Nothing in this Agreement shall preclude Executive from any mass solicitation
      to
      groups and individual follow-up solicitations of persons or businesses named
      in
      any list or data base not specifically related to or previously defined by
      the
      Bank, even though the names of certain Bank customers may appear in such list
      or
      data base.

     

    2.    Indemnification.  Contemporaneous
      with the
      parties entering into this Agreement, Holding and Executive shall enter into
      the
      Indemnification Agreement in the form attached to this Agreement as Exhibit
      A.

    


    3.    Return
      of Property.  Executive expressly
      agrees that
      all manuals, documents, files, reports, studies, instruments, equipment and
      other materials and property used and/or developed by Bank or Executive (whether
      on his personal time or while performing services for the Bank) during the
      Term
      (“Preparatory Work”) are the sole property of Bank, and that Executive has no
      right, title or interest in such property. Executive further agrees that,
      subject to the execution of this Agreement, all Preparatory Work is the sole
      property of Bank, and that Executive has no right, title or interest, legal
      or
      beneficial, in such Preparatory Work or in any benefits that may arise from
      such
      Preparatory Work. Upon termination of this Agreement for any reason, Executive
      or Executive's representative shall promptly deliver possession of all of said
      property to Bank in original or good, operating condition, normal wear and
      tear
      excepted.

    


    4.    Notices.  Any
      notice, request,
      demand or other communication required or permitted hereunder shall be
      considered to be properly given when personally served in writing, when
      deposited in the United States mail, postage prepaid, or when delivered to
      a
      generally recognized overnight courier service (such as, for example, Federal
      Express or United Parcel Service) addressed to the Party at such Party's address
      appearing at the beginning of this Agreement. Either Party may change its
      address by written notice in accordance with this paragraph.

    


    5.    Benefit
      of Agreement; Assignment.  This Agreement shall
      inure to the
      benefit of and be binding upon the Parties and their respective executors,
      administrators, successors and assigns. This Agreement is for the personal
      services of Executive and may not be assigned by Executive.

    


    6.    Applicable
      Law.  Except to
      the extent governed by the laws of the United States, this Agreement is to
      be
      governed by and construed under the laws of the State of
      California.


    
      
        
        

      

      
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    7.    Captions
      and Paragraphs Headings.  Captions and paragraph
      headings
      used herein are for convenience only and are not a part of this Agreement and
      shall not be used in constructing it.

    


    8.    Invalid
      Provisions.  Should any provision
      of this
      Agreement for any reason be declared invalid, void, or unenforceable by a court
      of competent jurisdiction, the validity and binding effect of any remaining
      portion shall not be affected, and the remaining portions of this Agreement
      shall remain in full force and effect as if this Agreement had been executed
      with said provision eliminated. 

    


    9.    Entire
      Agreement.  This
      Agreement contains the entire agreement of the Parties. It supersedes any and
      all other agreements or understandings, whether oral or written, between the
      Parties with respect to the employment of Executive by Bank. The terms of this
      Agreement in Paragraph D.4 applicable to stock options supersede the terms
      of
      the Plan or any agreement between the Parties to the extent the terms of the
      Plan and any other agreement are inconsistent with the terms of Paragraph D.4.
      Each party to this Agreement acknowledges that no representations, inducements,
      promises, or agreements, oral or otherwise, have been made by any party, or
      anyone acting on behalf of any party, that are not embodied in this Agreement,
      and that no other agreement, statement, or promise not contained in this
      Agreement shall be valid or binding. This Agreement may be modified or amended
      only in a written document signed by the party against whom enforcement is
      sought. The amendment or other modification of the Plan or other any other
      agreement generally applicable to the grant of stock options or issuance of
      stock options by Holding to employees, including Executive, will not supersede
      the terms of this Agreement pertaining to stock options without the express
      written approval of the Parties contained in a writing expressly stating its
      intent to supersede the specific terms of this Agreement applicable to stock
      options. Additionally, terms of this Agreement will prevail in any conflicts
      with other agreements.

    


    10.    Attorney's
      Fees.  Each party
      shall bear his or its own attorneys' fees and costs incurred in connection
      with
      the negotiation, preparation and delivery of this Agreement. However, if any
      action is instituted to enforce or interpret any of the obligations set forth
      in
      this Agreement, the prevailing party(ies) shall be entitled to recover its
      (their) reasonable attorneys' fees and costs incurred in connection with the
      enforcement or interpretive action.

    


    11.    Trade
      Secrets.  To the
      extent that during the Term Bank develops any trade secrets, as that term is
      defined under California law, the Parties agree that such trade secrets belong
      to and are the property of the Bank. Executive agrees that for a period of
      one
      year after the termination of this Agreement. Executive shall not disclose
      any
      of Bank's trade secrets, directly or indirectly, or use them in any way in
      contravention of the rights of the Bank to such trade secrets.

    


    12.    Accounting
      Principles.  Wherever in this Agreement,
      including any exhibit hereto, there is a reference to or need to use or rely
      upon accounting principles and procedures, such accounting principles and
      procedures shall be those used by the Bank in the preparation and filing of
      its
      reports of financial condition and operations in the form of Thrift Financial
      Reports, as filed with the Office of Thrift Supervision in the ordinary course
      (“TFRs”). By way of example, such items as Total Assets and loan loss reserves
      shall be computed as they are computed for purposes of reporting such
      information in the Bank's TFRs.


    
      
        
        

      

      
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    The
      Parties execute this Agreement on December 7, 2005, as of the Effective Date
      first above written.

    


    


    
      	
              EXECUTIVE:

            	 	
              BANK
                OF INTERNET USA

            	 
	 	 	
              a
                federal savings bank

            	 
	 	 	 	 
	
              /s/
                Terry M. Harris

            	 	
              By:
                

            	
              /s/
                Gary Lewis Evans

            	 
	
              Terry
                M. Harris

            	 	
              Name:   
                

            	
              Gary
                Lewis Evans

            	 
	 	 	
              Title:
                

            	
              President
                & CEO

            	 


    

    


    


    


    


    CONSENT
      OF BOFI HOLDING, INC.

    


    By
      execution of this Agreement below, BofI Holding, Inc., a Delaware corporation,
      consents to and agrees to perform its obligations under Paragraph
      D.4.

    BofI
      Holding, Inc.

    


    
      	
              By:

            	
              /s/
                Gary Lewis Evans

            	 
	 	
              Gary
                Lewis Evans, President & CEO

            	 


    

     

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