HomeTrust Bancshares, Inc.
EX-10.23
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<TYPE>EX-10.23
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<FILENAME>demarcuscicagreement9-11.htm
<DESCRIPTION>EX-10.23
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<DIV><FONT size="1" style="font-size:1pt;color:white">AMENDED AND RESTATED CHANGE IN CONTROL SEVERANCE AGREEMENT  OF  MARK DEMARCUS  THIS AMENDED AND RESTATED CHANGE IN CONTROL SEVERANCE  AGREEMENT (&#8220;Agreement&#8221;) is made and entered into as of this 11th day of September 2018,  by and between HomeTrust Bancshares, Inc, Asheville, North Carolina (hereinafter referred to as  the &#8220;Company&#8221;) and Mark DeMarcus (the &#8220;Employee&#8221;).  WHEREAS, the Company and the Employee previously entered into a change in control  severance agreement on February 16, 2018 (the &#8220;Prior Agreement&#8221;);  WHEREAS, the Employee serves as the EVP/Commercial Banking Group Executive of  HomeTrust Bank, Asheville, North Carolina (the &#8220;Bank&#8221;); and  WHEREAS, the Board of Directors of the Company believes it is in the best interests of  the Company and the Bank to enter into this Agreement with the Employee, which amends and  restates the Prior Agreement in its entirety, in order to (a) revise the severance provisions in  Section 3(a) of the Agreement, (b) clarify the provisions regarding confidential information, (c)  add non-competition provisions and expand the non-solicitation provisions, (d) ensure  compliance with Section 409A of the Code, (e) delete certain regulatory provisions no longer  required to be included in light of the change in the Bank&#8217;s charter, and (f) make certain other  changes; and    WHEREAS, the Board of Directors has approved and authorized the execution of this  Agreement with the Employee;  NOW, THEREFORE, in consideration of the foregoing and of the respective covenants  and agreements of the parties herein contained, it is AGREED as follows:  1. Definitions.  (a)  The term &#8220;Cash Compensation&#8221; shall mean the highest annual base salary  rate paid to the Employee at any time during his employment by the Company and its  Consolidated Subsidiaries, plus the higher of (i) the Employee&#8217;s annual bonus paid during the  year immediately preceding the Date of Termination, or (ii) the Employee&#8217;s target bonus for the  year in which the Date of Termination occurs, in each case including any salary or bonus  amounts deferred by the Employee.      (b) The term &quot;Change in Control&quot; means any of the following events: (1) any  person or persons acting as a group (within the meaning of Section 409A of the Code) acquires  (or has acquired during the 12-month period ending on the date of the most recent acquisition by  such person or persons) ownership of stock of the Company or the Bank possessing 30% or more  of the total voting power of the outstanding stock of the Company or the Bank; (2) individuals  who are members of the Board of Directors of the Company on the date hereof (the &quot;Incumbent  Board&quot;) cease for any reason during any 12-month period to constitute at least a majority thereof,  </FONT></DIV>
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<DIV><FONT size="1" style="font-size:1pt;color:white">2  provided that any person becoming a director subsequent to the date hereof whose election was  approved by a vote of at least a majority of the directors comprising the Incumbent Board, or  whose nomination for election by the Company&#8217;s stockholders was approved by the nominating  committee serving under an Incumbent Board, shall be considered a member of the Incumbent  Board; (3) any person or persons acting as a group (within the meaning of Section 409A of the  Code) acquires (or has acquired during the 12-month period ending on the date of the most  recent acquisition by such person or persons) assets of the Company or the Bank that have a  gross fair market value of 40% or more of the total gross fair market value of all of the assets of  the Company or the Bank immediately before such acquisition or acquisitions; or (4) any other  event which is not covered by the foregoing subsections but which the Board of Directors  determines to affect control of the Company or the Bank and with respect to which the Board of  Directors adopts a resolution that the event constitutes a Change in Control for purposes of this  Agreement; provided that with respect to each of the events covered by clauses (1) through (4)  above, the event must also be deemed to be either a change in the ownership of the Company or  the Bank, a change in the effective control of the Company or the Bank or a change in the  ownership of a substantial portion of the assets of the Company or the Bank within the meaning  of Section 409A of the Code.      (c) The term &#8220;Code&#8221; means the Internal Revenue Code of 1986, as amended,  or any successor code thereto.  (d) The term &#8220;Consolidated Subsidiaries&#8221; means any subsidiary or  subsidiaries of the Company (or its successors) that are part of the consolidated group of the  Company (or its successors) for federal income tax reporting.  (e) The term &#8220;Date of Termination&#8221; means the date upon which the  Employee's employment with the Company and its Consolidated Subsidiaries ceases, as  specified in a written notice of termination, provided that all references in this Agreement to a  Date of Termination that results in the payment of severance shall mean the date of the  Executive&#8217;s involuntary Separation from Service.  (f) The term &#8220;Effective Date&#8221; means the date first written above.  (g) The term &#8220;Health Insurance Benefits&#8221; shall mean the following benefits to  be provided pursuant to Section 3(a) of this Agreement to the Employee and his dependents who  are covered by the Company or any of its Consolidated Subsidiaries at the time of the  Employee&#8217;s Involuntary Termination (each such person, including the Employee, a &#8220;Covered  Person&#8221; and collectively the &#8220;Covered Persons&#8221;): (i) the Company or the Bank shall pay 100% of  the premiums for COBRA coverage for each such Covered Person until the earlier of (A) the  expiration of the COBRA period or (B) the death of such person; or (ii) in the event that the  continued participation of the Covered Person in any insurance plan as provided in clause (i)  above is barred or would trigger the payment of an excise tax under Section 4980D of the Code,  or during the COBRA Period any such insurance plan is discontinued, then the Company and the  Bank shall at their election either (A) arrange to provide the Covered Person with alternative  benefits substantially similar to those which the Covered Person was entitled to receive under  such insurance plan immediately prior to the Date of Termination, provided that the alternative  benefits do not trigger the payment of an excise tax under Section 4980D of the Code, or (B) in  the event that the continuation of any insurance coverage as specified above would trigger the  </FONT></DIV>
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<DIV><FONT size="1" style="font-size:1pt;color:white">3  payment of an excise tax under Section 4980D of the Code or in the event such continued  coverage is unable to be provided by the Company or the Bank, pay to the Employee within 30  days following the Date of Termination (or within 30 days following the discontinuation of the  benefits if later) a lump sum cash amount equal to the projected cost to the Company and the  Bank of providing continued coverage to the Covered Person until the expiration of the COBRA  Period, with the projected cost to be based on the costs being incurred immediately prior to the  Involuntary Termination (or the discontinuation of the benefits if later), as increased by 15% on  each scheduled renewal date. Any insurance premiums payable by the Company or the Bank as  specified above shall be payable at such times and in such amounts (except that the Company or  the Bank shall also pay any employee portion of the premiums) as if the Employee was still an  employee of the Company or its Consolidated Subsidiaries, 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 Company or the Bank in any taxable year shall not affect the amount  of insurance premiums required to be paid by the Company or the Bank in any other taxable  year.      (h) The term &#8220;Involuntary Termination&#8221; means a termination of the  employment of the Employee (i) by the Company without his express written consent; or (ii) by  the Employee by reason of a material diminution of or interference with his duties, titles,  responsibilities or benefits, including any of the following actions unless consented to in writing  by the Employee:  (1) a requirement that the Employee be based at any place other than  Asheville, North Carolina, or within 20 miles thereof, except for reasonable travel on Company  or Bank business; (2) a material demotion of the Employee; or (3) a material reduction in the  Employee&#8217;s salary, other than prior to a Change in Control as part of an overall program applied  uniformly and with equitable effect to all members of the senior management of the Company or  the Bank; provided in each case that Involuntary Termination shall mean a cessation or reduction  in the Employee&#8217;s services for the Company and the Bank (and any other affiliated entities that  are deemed to constitute a &#8220;service recipient&#8221; as defined in Treasury Regulation &sect;1.409A- 1(h)(3)) that constitutes a &#8220;Separation from Service&#8221; as determined under Section 409A of the  Code, taking into account all of the facts, circumstances, rules and presumptions set forth in  Treasury Regulation &sect;1.409A-1(h) and that also constitutes an involuntary Separation from  Service under Treasury Regulation &sect;1.409A-1(n).    In addition, before the Employee terminates  his employment pursuant to clauses (1) through (3) of the preceding sentence, the Employee  must first provide written notice to the Company within ninety (90) days of the initial existence  of the condition, describing the existence of such condition, and the Company shall thereafter  have the right to remedy the condition within thirty (30) days following the date it received the  written notice from the Employee.  If the Company remedies the condition within such thirty  (30) day cure period, then the Employee shall not have the right to terminate his employment as  the result of such event.  If the Company does not remedy the condition within such thirty (30)  day cure period, then the Employee may terminate his employment as the result of such event at  any time within sixty (60) days following the expiration of such cure period.  All references in  this Agreement to an Involuntary Termination that results in the payment of severance shall  mean an involuntary Separation from Service under Treasury Regulation &sect;1.409A-1(n). The  term &#8220;Involuntary Termination&#8221; does not include Termination for Cause, termination of  employment due to death or permanent disability, or suspension or temporary or permanent  prohibition from participation in the conduct of the affairs of a depository institution under  Section 8 of the Federal Deposit Insurance Act.  </FONT></DIV>
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<DIV><FONT size="1" style="font-size:1pt;color:white">4      (i) The term &#8220;Section 409A&#8221; means Section 409A of the Code and the  regulations and guidance of general applicability issued thereunder.    (j) The terms &#8220;Termination for Cause&#8221; and &#8220;Terminated for Cause&#8221; mean any  of the following: (i) the commission by the Employee of a willful act (including, without  limitation, a dishonest or fraudulent act) or a grossly negligent act, or the willful or grossly  negligent omission to act by the Employee, which is intended to cause, does cause or is  reasonably likely to cause material harm to the Company or any of its Consolidated Subsidiaries  (including harm to its business reputation); (ii) the indictment of the Employee for the  commission or perpetration by the Employee of any felony or any crime involving dishonesty,  moral turpitude or fraud; (iii) the material breach by the Employee of this Agreement; (iv) the  receipt of any formal written notice that any regulatory agency having jurisdiction over the  Company or the Bank intends to institute any formal regulatory action against the Employee, the  Company or the Bank (provided that the Board determines in good faith, with the Employee  abstaining from participating in the vote on the matter, that the subject matter of such action  involves acts or omissions by the Employee); (v) the exhibition by the Employee of a standard of  behavior within the scope of his employment that is materially disruptive to the orderly conduct  of the business operations of the Company or any of its Consolidated Subsidiaries (including,  without limitation, substance abuse or sexual misconduct) to a level which, in the Board&#8217;s good  faith and reasonable judgment, with the Employee abstaining from participating in the vote on  the matter, is materially detrimental to the best interests of the Company or any of its  Consolidated Subsidiaries; (vi) the failure of the Employee to devote his full business time and  attention to his employment as provided under this Agreement; or (vii) the failure of the  Employee to adhere to any policy or code of conduct of the Company or any of its Consolidated  Subsidiaries which causes, or is reasonably likely to cause, material harm to the Company or any  of its Consolidated Subsidiaries; provided that, if the Board of Directors determines in its good  faith discretion that the breach, behavior or failure specified in clauses (iii), (v) or (vi) above is  capable of being cured by the Employee, then Cause shall not be deemed to exist with respect to  such matter if the Employee cures the breach, behavior or failure to the satisfaction of the Board  of Directors within 10 days following written notice to the Employee of such breach, behavior or  failure. No act or failure to act by the Employee shall be considered willful unless the Employee  acted or failed to act with an absence of good faith and without a reasonable belief that his action  or failure to act was in the best interest of the Company or the Bank.  The Employee shall not be  deemed to have been Terminated for Cause unless and until there shall have been delivered to  the Employee a copy of a resolution, duly adopted by the affirmative vote of not less than a  majority of the entire membership of the Board of Directors at a meeting of the Board duly  called and held for such purpose (after reasonable notice to the Employee and an opportunity for  the Employee to present his views on the matter to the Board either in person without counsel or  in writing), stating that in the good faith opinion of the Board of Directors the Employee has  engaged in conduct described in the preceding sentence and specifying the particulars thereof in  detail.  The opportunity of the Employee to be heard before the Board shall not affect the right of  the Employee to arbitration as set forth in Section 13 of this Agreement. The Board reserves the  right to suspend the Employee with pay pending the determination of Cause under this Section  1(j), as appropriate.  </FONT></DIV>
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<DIV><FONT size="1" style="font-size:1pt;color:white">5   2. Term.  The initial term of this Agreement shall continue until the two-year  anniversary of the Effective Date, subject to earlier termination as provided herein.  On each  annual anniversary of the Effective Date, the term shall be extended for a period of one year in  addition to the then-remaining term, provided that the Company has not given notice to the  Employee in writing at least 30 days prior to such annual anniversary date that the term of this  Agreement shall not be extended further, and provided further that the Employee has not  received an unsatisfactory performance review by either the Board of Directors or the board of  directors of the Bank.  No annual extension can automatically extend beyond the Employee&#8217;s  65th birthday.  3. Severance Benefits.  (a) In the event of the Involuntary Termination of the Employee at the time of  or within 12 months following a Change in Control, the Company or the Bank shall, subject to  the Employee executing and not revoking a general release of claims pursuant to Section 3(b)  below, (i) pay to the Employee a lump sum cash amount equal to two times the Employee&#8217;s Cash  Compensation, with such lump sum payment to be made within 30 days following the date the  general release of claims is executed and the revocation period expires without the release being  revoked, except as otherwise set forth in Section 3(b) below, and (ii) provide Health Insurance  Benefits to each Covered Person. If the Employee is a &#8220;Specified Employee&#8221; (as defined in  Section 409A) at the time of his Separation from Service, then payments under this Section 3(a)  which are not covered by either the separation pay plan exemption or the short-term deferral  exemption from Section 409A set forth in Treasury Regulations &sect;1.409A-1(b)(9)(iii) and  &sect;1.409A-1(b)(4), respectively, and as such constitute deferred compensation under Section  409A, shall not be paid until the 185th day following the Employee&#8217;s Separation from Service,  or his earlier death (the &#8220;Delayed Distribution Date&#8221;).  Any payments deferred on account of the  preceding sentence shall be accumulated without interest and paid with the first payment that is  payable in accordance with the preceding sentence and Section 409A.  To the extent permitted  by Section 409A, amounts payable under this Section 3(a) which are considered deferred  compensation shall be treated as payable after amounts which are not considered deferred  compensation (i.e., which are considered payable on account of an involuntary Separation from  Service as herein defined herein pursuant to a separation pay plan or pursuant to the short-term  deferral exemption).  (b) The  obligations of the Company and the Bank to pay severance or  provide benefits under Section 3(a) above is expressly conditioned upon the Employee executing  a general release of claims within the time period set forth in the release to be provided to him by  the Company and not revoking such release, with such general release to release any and all  claims, charges and complaints which the Employee may have against the Company and its  Consolidated Subsidiaries, as well as the directors, officers and employees of such entities, in  connection with the Employee&#8217;s employment with the Company and its Consolidated  Subsidiaries and the termination of such employment.  Notwithstanding any other provision  contained in this Agreement, in the event the time period that the Employee has to consider the  terms of such general release (including any revocation period under such release) commences in  one calendar year and ends in the succeeding calendar year, then the payments shall not  commence or be paid until the succeeding calendar year.    </FONT></DIV>
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<DIV><FONT size="1" style="font-size:1pt;color:white">6  (c) Certain Reduction of Payments by the Bank.  (i) In the event that the aggregate payments or benefits to be provided  to the Employee pursuant to this Agreement, together with other payments and benefits which  the Employee has a right to receive from the Company or its Consolidated Subsidiaries or any  their successors are deemed to be parachute payments as defined in Section 280G of the Code or  any successor thereto (the &#8220;Severance Benefits&#8221;), then the aggregate present value of amounts  payable or distributable to or for the benefit of the Employee pursuant to this Agreement (such  amounts payable or distributable pursuant to this Agreement are hereinafter referred to as  &#8220;Agreement Payments&#8221;) shall be reduced to the Reduced Amount.  The &#8220;Reduced Amount&#8221; shall  be an amount, not less than zero, expressed in present value which maximizes the aggregate  present value of Agreement Payments without causing any Severance Benefits to be  nondeductible by the Company because of Section 280G of the Code.  For purposes of this  Section 3(b), present value shall be determined in accordance with Section 280G(d)(4) of the  Code.     (ii) All determinations required to be made under this Section 3(b))  related to the application of Section 280G of the Code shall be made by the Company&#8217;s  independent auditors or by such other firm with recognized expertise as may be selected by the  Company (such auditors or, if applicable, such other firm are hereinafter referred to as the  &#8220;Advisory Firm&#8221;).  The Advisory Firm shall, within ten business days of the Date of Termination  or at such earlier time as is requested by the Company, provide to both the Company and the  Employee an opinion (and detailed supporting calculations) that the Company has substantial  authority to deduct for purposes of Section 280G of the Code (before taking into account any  amount not deductible under Section 162(m) of the Code) the full amount of the Agreement  Payments to be paid and that the Employee has substantial authority not to report on his federal  income tax return any excise tax imposed by Section 4999 of the Code with respect to the  Agreement Payments to be paid.  Any such determination and opinion by the Advisory Firm  shall be binding upon the Company and the Employee.  If the Agreement Payments are required  to be reduced to the Reduced Amount, then the cash severance payable pursuant to Section 3(a)  of this Agreement shall be reduced first. The Company and the Employee shall cooperate fully  with the Advisory Firm, including without limitation providing to the Advisory Firm all  information and materials reasonably requested by it, in connection with the making of the  determinations required under this Section 3(c).    (iii) As a result of uncertainty in the application of Section 280G of the  Code at the time of the initial determination by the Advisory Firm hereunder, it is possible that  Agreement Payments will have been made by the Company which should not have been made  (&#8220;Overpayment&#8221;) or that additional Agreement Payments will not have been made by the  Company which should have been made (&#8220;Underpayment&#8221;), in each case, consistent with the  calculations required to be made hereunder.  In the event that the Advisory Firm, based upon the  assertion by the Internal Revenue Service against the Employee of a deficiency which the  Advisory Firm believes has a high probability of success, determines that an Overpayment has  been made, any such Overpayment paid or distributed by the Company to or for the benefit of  the Employee shall be repaid by the Employee to the Company together with interest at the  applicable federal rate provided for in Section 1274 of the Code, with such repayment to be  made within 60 days following the date the amount of the Overpayment has been communicated  </FONT></DIV>
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<DIV><FONT size="1" style="font-size:1pt;color:white">7  to the Employee. In the event that the Advisory Firm, based upon controlling precedent or other  substantial authority, determines that an Underpayment has occurred, any such Underpayment  shall be promptly paid by the Company to or for the benefit of the Employee together with  interest at the applicable federal rate provided for in Section 1274 of the Code, with such  payment to be made within 60 days following the date the amount of the Underpayment has been  communicated to the Company.     (iv) Any payments made to the Employee pursuant to this Agreement,  or otherwise, are subject to and conditioned upon their compliance with 12 U.S.C. 1828(k) and  any regulations promulgated thereunder.   (d) Termination for Cause.  In the event of Termination for Cause, the  Company shall have no further obligation to the Employee under this Agreement after the Date  of Termination.  4. Attorneys Fees.  In the event of a dispute arising out of this Agreement,  reasonable legal fees and related expenses incurred by the Employee resulting from such dispute  shall be paid by the Company only if the Employee prevails in such dispute.  5. Non-Disclosure, Non-Competition and Non-Solicitation Provisions.  (a) Non-Disclosure.  The Employee acknowledges that he has acquired, and  will continue to acquire while employed by the Company and/or performing services for the  Consolidated Subsidiaries, special knowledge of the business, affairs, strategies and plans of the  Company and the Consolidated Subsidiaries which has not been disclosed to the public and  which constitutes confidential and proprietary business information owned by the Company and  the Consolidated Subsidiaries, including but not limited to, information about the customers,  customer lists, software, data, formulae, processes, inventions, trade secrets, marketing  information and plans, and business strategies of the Company and the Consolidated  Subsidiaries, and other information about the products and services offered or developed or  planned to be offered or developed by the Company and/or the Consolidated Subsidiaries  (&#8220;Confidential Information&#8221;).  The Employee agrees that, without the prior written consent of the  Company, he shall not, during the term of his employment or at any time thereafter, in any  manner directly or indirectly disclose any Confidential Information to any person or entity other  than the Company and the Consolidated Subsidiaries.  Notwithstanding the foregoing, if the  Employee is requested or required (including but not limited to by oral questions, interrogatories,  requests for information or documents in legal proceeding, subpoena, civil investigative demand  or other similar process) to disclose any Confidential Information, the Employee shall provide  the Company with prompt written notice of any such request or requirement so that the Company  and/or a Consolidated Subsidiary may seek a protective order or other appropriate remedy and/or  waive compliance with the provisions of this Section 5(a). If, in the absence of a protective order  or other remedy or the receipt of a waiver from the Company, the Employee is nonetheless  legally compelled to disclose Confidential Information to any tribunal or else stand liable for  contempt or suffer other censure or penalty, the Employee may, without liability hereunder,  disclose to such tribunal only that portion of the Confidential Information which is legally  required to be disclosed, provided that the Employee exercise his best efforts to preserve the  confidentiality of the Confidential Information, including without limitation by cooperating with  the Company and/or a Consolidated Subsidiary to obtain an appropriate protective order or other  </FONT></DIV>
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<DIV><FONT size="1" style="font-size:1pt;color:white">8  reliable assurance that confidential treatment will be accorded the Confidential Information by  such tribunal.  Notwithstanding anything to the contrary herein, the parties hereto agree that  nothing contained in this Agreement limits the Employee&#8217;s ability to report information to or file  a charge or complaint with the Equal Employment Opportunity Commission, the Securities and  Exchange Commission, the Federal Deposit Insurance Corporation, the Board of Governors of  the Federal Reserve System or any other federal, state or local governmental agency or  commission that has jurisdiction over the Company or any Consolidated Subsidiary (the  &#8220;Government Agencies&#8221;). The Employee further understands that this Agreement does not limit  his ability to communicate with any Government Agencies or otherwise participate in any  investigation or proceeding that may be conducted by any Government Agency, including  providing documents or other information, without notice to the Company and/or any  Consolidated Subsidiary. This Agreement does not limit the Employee&#8217;s right to receive an  award for information provided to any Government Agencies. In addition, pursuant to the  Defend Trade Secrets Act of 2016, the Employee understands that an individual may not be held  criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade  secret that (i) is made (A) in confidence to a federal, state or local government official, either  directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or  investigating a suspected violation of law; or (ii) is made in a complaint or other document that is  filed under seal in a lawsuit or other proceeding.  Further, an individual who files a lawsuit for  retaliation by an employer for reporting a suspected violation of law may disclose the employer's  trade secrets to the attorney and use the trade secret information in the court proceeding if the  individual (y) files any document containing the trade secret under seal; and (z) does not disclose  the trade secret, except pursuant to court order.  On the Date of Termination, the Employee shall  promptly deliver to the Company all copies of documents or other records (including without  limitation electronic records) containing any Confidential Information that is in his possession or  under his control, and shall retain no written or electronic record of any Confidential  Information.       (b) Non-Competition. As partial consideration for the severance payments and  benefits to be provided to the Employee pursuant to Section 3 of this Agreement, the Employee  agrees that during the one-year period next following the Date of Termination (the &#8220;Non- Competition Period&#8221;), the Employee shall not engage in, become interested in, directly or  indirectly, as a sole proprietor, as a partner in a partnership, or as a shareholder in a corporation,  or become associated with, in the capacity of employee, director, officer, principal, agent,  consultant, trustee or in any other capacity whatsoever, any enterprise or entity with an office  located within 50 miles of any office of the Company or any Consolidated Subsidiary during the  Non-Competition Period, which proprietorship, partnership, corporation, enterprise or other  entity is engaged in any line of business conducted by the Company or any banking subsidiary of  the Company during the Non-Competition Period, including but not limited to entities which  lend money and take deposits (in each case, a &#8220;Competing Business&#8221;), provided, however, that  this provision shall not prohibit the Employee from owning bonds, non-voting preferred stock or  up to five percent (5%) of the outstanding common stock of any Competing Business if such  common stock is publicly traded.      (c) Non-Solicitation.  As partial consideration for the severance payments and  benefits to be provided to the Employee pursuant to Section 3 of this Agreement, the Employee  agrees that during the two-year period next following the Date of Termination, the Employee  </FONT></DIV>
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<DIV><FONT size="1" style="font-size:1pt;color:white">9  shall not directly or indirectly (i) solicit or induce, or cause others to solicit or induce, any  employee of the Company or any Consolidated Subsidiary to leave the employment of such  entities, or (ii) solicit (whether by mail, telephone, personal meeting or any other means,  excluding general solicitations of the public that are not based in whole or in part on any list of  customers of the Company or any Consolidated Subsidiary) any customer of the Company or any  Consolidated Subsidiary to transact business with any Competing Business, or to reduce or  refrain from doing any business with the Company or any Consolidated Subsidiary, or interfere  with or damage (or attempt to interfere with or damage) any relationship between the Company  or any Consolidated Subsidiary and any such customers.   The provisions of this Section 5 shall survive any termination of the Employee&#8217;s  employment and any termination of this Agreement.  6. No Assignments.  (a) This Agreement is personal to each of the parties hereto, and neither party  may assign or delegate any of its rights or obligations hereunder without first obtaining the  written consent of the other party; provided, however, that the Company shall require any  successor or assign (whether direct or indirect, by purchase, merger, consolidation or otherwise)  by an assumption agreement in form and substance satisfactory to the Employee, to expressly  assume and agree to perform this Agreement in the same manner and to the same extent that the  Company would be required to perform it if no such succession or assignment had taken place.   Failure of the Company to obtain such an assumption agreement prior to the effectiveness of any  such succession or assignment shall be a breach of this Agreement and shall entitle the Employee  to compensation and benefits from the Company in the same amount and on the same terms as  provided for upon an Involuntary Termination under Section 3 hereof.  For purposes of  implementing the provisions of this Section 6(a), the date on which any such succession becomes  effective shall be deemed the Date of Termination.  (b) This Agreement and all rights of the Employee hereunder shall inure to the  benefit of and be enforceable by the Employee&#8217;s personal and legal representatives, executors,  administrators, successors, heirs, distributees, devisees and legatees.    7. No Mitigation.  The Employee shall not be required to mitigate the amount of any  payment or benefit provided for in this Agreement by seeking other employment or otherwise,  nor shall the amount of any payment or benefit provided for in this Agreement be reduced by any  compensation earned by the Employee as the result of employment by another employer, by  retirement benefits after the Date of Termination or otherwise.  8. Notice.  For the purposes of this Agreement, notices and all other communications  provided for in this Agreement shall be in writing and shall be deemed to have been duly given  when personally delivered or sent by certified mail, return receipt requested, postage prepaid, to  the Company at its principal office, to the attention of the Board of Directors with a copy to the  Secretary of the Company, or, if to the Employee, to such home or other address as the  Employee has most recently provided in writing to the Company.  9. Amendments.  No amendments or additions to this Agreement shall be binding  unless in writing and signed by both parties, except as herein otherwise provided.    </FONT></DIV>
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<DIV><FONT size="1" style="font-size:1pt;color:white">10  10. Headings.  The headings used in this Agreement are included solely for  convenience and shall not affect, or be used in connection with, the interpretation of this  Agreement.  11. Severability. The provisions of this Agreement shall be deemed severable and the  invalidity or unenforceability of any provision shall not affect the validity or enforceability of the  other provisions hereof.  12. Governing Law. This Agreement shall be governed by the laws of the State of  North Carolina.  13. Arbitration.  Any dispute or controversy arising under or in connection with this  Agreement (other than relating to the enforcement of the provisions of Section 5) shall be settled  exclusively by arbitration before a single arbitrator in Asheville, North Carolina under the  commercial arbitration rules of the American Arbitration Association (the &#8220;AAA&#8221;) then in effect.   Judgment may be entered on the arbitrator's award in any court having jurisdiction. The  arbitrator shall be selected by the mutual agreement of the parties within ten (10) business days  of the date when the parties shall first have the opportunity to select an arbitrator (the &#8220;Selection  Period&#8221;); provided, however, that if the parties fail to agree upon an arbitrator by the expiration  of the Selection Period, each party shall, within five (5) business days after the expiration of the  Selection Period, select an arbitrator from the list of arbitrators provided by the AAA and the two  arbitrators so selected by each party, acting independently, shall, as soon as practicable and  within thirty (30) days of both being selected, agree upon the selection of the arbitrator to  arbitrate the controversy or claim.  14. Equitable and Other Judicial Relief.    (a) It is the intention of the parties hereto that the provisions of this  Agreement shall be enforced to the fullest extent permissible under all applicable laws and public  policies, but that the unenforceability or the modification to conform with such laws or public  policies of any provision hereof shall not render unenforceable or impair the remainder of this  Agreement.  The covenants in Section 5(b) with respect to the geographic area surrounding each  office shall be deemed to be separate covenants with respect to each office, and should any court  of competent jurisdiction conclude or find that this Agreement or any portion is not enforceable  with respect to a particular office, such conclusion or finding shall in no way render invalid or  unenforceable the covenants herein with respect to any other office.  Accordingly, if any  provision shall be determined to be invalid or unenforceable either in whole or in part, including  without limitation the geographic scope or duration of such provision, the parties hereto agree  that the court or authority making such determination shall have the power to reduce the scope or  duration of such provision or to delete specific words or phrases as necessary (but only to the  minimum extent necessary) to cause such provision or part to be valid and enforceable. If such  court or authority does not have the legal authority to take the actions described in the preceding  sentence, the parties agree to negotiate in good faith a modified provision that would, in so far as  possible, reflect the original intent of this Agreement, including without limitation Section 5  hereof, without violating applicable law.     (b) The Employee acknowledges that any breach of Section 5 will result in  irreparable damage to the Company for which the Company will not have an adequate remedy at  </FONT></DIV>
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<DIV><FONT size="1" style="font-size:1pt;color:white">11  law, especially in light of the impossibility of ascertaining exact money damages. In addition to  any other remedies and damages available to the Company, the Employee further acknowledges  that the Company shall be entitled to seek a temporary restraining order as well as preliminary  and permanent injunctive relief hereunder to enjoin any breach or threatened breach of Section 5  of this Agreement, and the Employee hereby consents to any restraining order or injunction  issued in favor of the Company by any court of competent jurisdiction, without prejudice to any  other right or remedy to which the Company may be entitled.  In addition, in the event of a  breach of Section 5 of this Agreement by the Employee, the Employee acknowledges that in  addition to or in lieu of the Company seeking injunctive relief, the Company may also seek a  forfeiture of the cash severance payments paid or payable to the Employee pursuant to Section 3  of this Agreement with respect to the period of the breach in an amount equal to (i) the value  ascribed to the non-competition or non-solicitation provision in Section 5 that was breached,  multiplied by (ii) a fraction, the numerator of which is the period of time that the Employee was  in breach of such provision and the denominator of which is the total duration of such provision  in Section 5.  Each of the remedies available to the Company in the event of a breach by the  Employee shall be cumulative and not mutually exclusive.    15. Counterparts.  This Agreement may be executed in one or more counterparts, each  of which shall be deemed to be an original and all of which together will constitute one and the  same instrument.    16. 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.    17. Entire Agreement.  This Agreement embodies the entire agreement between the  Company and the Employee with respect to the matters agreed to herein. All prior agreements  between the Company and the Employee with respect to the matters agreed to herein, including  the Prior Agreement, are hereby superseded and shall have no force or effect.      </FONT></DIV>
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<DIV><FONT size="1" style="font-size:1pt;color:white">12  IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and  year first written above.  THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH  MAY BE ENFORCED BY THE PARTIES.  HOMETRUST BANCSHARES, INC.     /s/ Dana L. Stonestreet   By: Dana Stonestreet  Its:  Chairman, President and Chief Executive  Officer    EMPLOYEE    /s/ Mark W. DeMarcus   Mark DeMarcus                                      G:\1192\2000\CIC Agmt/DeMarcus CIC Agreement, 9-11-18.doc  </FONT></DIV>
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