1
Exhibit 10
EMPLOYMENT AGREEMENT
As Amended and Restated
THIS AGREEMENT entered into this 1 st day of February, 2001 ("Effective
Date"), by and between Workingmens Bank (the "Savings Bank") and Xxxxxx X.
Xxxxxxxxx (the "Employee").
WHEREAS, the Employee has heretofore been employed by the Savings Bank
as President and is experienced in all phases of the business of the Savings
Bank; and
WHEREAS, the parties have previously entered into an Employment
Agreement; and
WHEREAS, the parties desire by this writing to set forth the continuing
employment relationship of the Savings Bank and the Employee, as set forth in
this amended and restated agreement.
NOW, THEREFORE, it is AGREED as follows:
1. Employment. The Employee is employed in the capacity as the
President of the Savings Bank. The Employee shall render such administrative and
management services to the Savings Bank and WSB Holding Company ("Parent") as
are currently rendered and as are customarily performed by persons situated in a
similar executive capacity. The Employee shall promote the business of the
Savings Bank and Parent. The Employee's other duties shall be such as the Board
of Directors for the Savings Bank (the "Board of Directors" or "Board") may from
time to time reasonably direct, including normal duties as an officer of the
Savings Bank.
2. Base Compensation. The Savings Bank agrees to pay the Employee
during the Term of this Agreement (as hereinafter defined at Section 5) a salary
at the rate of $ per annum, payable in cash not less frequently than monthly;
provided, that the rate of such salary shall be reviewed by the Board of
Directors not less often than annually, and Employee shall be entitled to
receive annually an increase at such percentage or in such an amount as the
Board of Directors in its sole discretion may decide at such time.
3. Discretionary Bonus. The Employee shall be entitled to participate
in an equitable manner with all other senior management employees of the Savings
Bank in discretionary bonuses that may be authorized and declared by the Board
of Directors to its senior management employees from time to time. No other
compensation provided for in this Agreement shall be deemed a substitute for the
Employee's right to participate in such discretionary bonuses when and as
declared by the Board of Directors.
4. (a) Participation in Retirement and Medical Plans. The Employee
shall be entitled to participate in any plan of the Savings Bank relating to
pension, profit-sharing, or other retirement benefits and medical coverage or
reimbursement plans
2
that the Savings Bank may adopt for the benefit of its employees. Additionally,
Employee's dependent family shall be eligible to participate in medical and
dental insurance plans sponsored by the Savings Bank or Parent with the cost of
such premiums paid by the Savings Bank.
(b) Employee Benefits; Expenses. The Employee shall be eligible to
participate in any fringe benefits which may be or may become applicable to the
Savings Bank's senior management employees, including by example, participation
in any stock option or incentive plans adopted by the Board of Directors of
Savings Bank or Parent, reimbursement for club memberships, a reasonable expense
account, receipt of an appropriate automobile reimbursement allowance and any
other benefits which are commensurate with the responsibilities and functions to
be performed by the Employee under this Agreement. The Savings Bank shall
reimburse Employee for all reasonable out-of-pocket expenses which Employee
shall incur in connection with his service for the Savings Bank.
5. Term. The term of employment of Employee under this Agreement shall
be for the period commencing on the Effective Date and ending thirty-six (36)
months thereafter ("Term"). Additionally, on, or before, each annual anniversary
date from the Effective Date, the Term of employment under this Agreement shall
be extended for up to an additional period beyond the then effective expiration
date upon a determination and resolution of the Board of Directors that the
performance of the Employee has met the requirements and standards of the Board,
and that the Term of such Agreement shall be extended.
6. Loyalty; Noncompetition.
(a) The Employee shall devote his full time and attention to the
performance of his employment under this Agreement. During the term of
Employee's employment under this Agreement, the Employee shall not engage in any
business or activity contrary to the business affairs or interests of the
Savings Bank or Parent.
(b) Nothing contained in this Section 6 shall be deemed to prevent or
limit the right of Employee to invest in the capital stock or other securities
of any business dissimilar from that of the Savings Bank or Parent, or, solely
as a passive or minority investor, in any business.
7. Standards. The Employee shall perform his duties under this
Agreement in accordance with such reasonable standards expected of employees
with comparable positions in comparable organizations and as may be established
from time to time by the Board of Directors.
8. Vacation and Sick Leave. At such reasonable times as the Board of
Directors shall in its discretion permit, the Employee
3
shall be entitled, without loss of pay, to absent himself voluntarily from the
performance of his employment under this Agreement, with all such voluntary
absences to count as vacation time; provided that:
(a) The Employee shall be entitled to annual vacation leave in
accordance with the policies as are periodically established by the Board of
Directors for senior management employees of the Savings Bank.
(b) The Employee shall not be entitled to receive any additional
compensation from the Savings Bank on account of his failure to take vacation
leave and Employee shall not be entitled to accumulate unused vacation from one
fiscal year to the next, except in either case to the extent authorized by the
Board of Directors for senior management employees of the Savings Bank.
(c) In addition to the aforesaid paid vacations, the Employee shall be
entitled without loss of pay, to absent himself voluntarily from the performance
of his employment with the Savings Bank for such additional periods of time and
for such valid and legitimate reasons as the Board of Directors in its
discretion may determine. Further, the Board of Directors shall be entitled to
grant to the Employee a leave or leaves of absence with or without pay at such
time or times and upon such terms and conditions as the Board of Directors in
its discretion may determine.
(d) In addition, the Employee shall be entitled to an annual sick leave
benefit as established by the Board of Directors for senior management employees
of the Savings Bank. In the event that any sick leave benefit shall not have
been used during any year, such leave shall accrue to subsequent years only to
the extent authorized by the Board of Directors for employees of the Savings
Bank.
9. Termination and Termination Pay.
The Employee's employment under this Agreement shall be terminated upon
any of the following occurrences:
(a) The death of the Employee during the term of this Agreement, in
which event the Employee's estate shall be entitled to receive the compensation
due the Employee through the last day of the calendar month in which Employee's
death shall have occurred.
(b) The Board of Directors may terminate the Employee's employment at
any time, but any termination by the Board of Directors other than termination
for Just Cause, shall not prejudice the Employee's right to compensation or
other benefits under the Agreement. The Employee shall have no right to receive
compensation or other benefits for any period after termination for
4
Just Cause. Termination for "Just Cause" shall include termination because of
the Employee's 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 the Agreement.
(c) Except as provided pursuant to Section 12 herein, in the event
Employee's employment under this Agreement is terminated by the Board of
Directors without Just Cause, the Bank shall be obligated to continue to pay the
Employee at the base salary rate then in effect for a period of not less than
twelve (12) thereafter and the cost of Employee obtaining all health, life,
disability, and other benefits which the Employee would be eligible to
participate in through such date based upon the benefit levels substantially
equal to those being provided to Employee at the date of termination of
employment.
(d) The voluntary termination by the Employee during the term of this
Agreement with the delivery of no less than 60 days written notice to the Board
of Directors, other than pursuant to Section 12(b), in which case the Employee
shall be entitled to receive only the compensation, vested rights, and all
employee benefits up to the date of such termination.
10. Regulatory Exclusions.
(a) If the Employee is suspended and/or temporarily prohibited from
participating in the conduct of the Savings Bank's affairs by a notice served
under Section 8(e)(3) or (g)(1) of the FDIA (12 U.S.C. 1818(e)(3) and (g)(1)),
the Savings Bank's obligations under the Agreement shall be suspended as of the
date of service, unless stayed by appropriate proceedings. If the charges in the
notice are dismissed, the Savings Bank may in its discretion (i) pay the
Employee all or part of the compensation withheld while its contract obligations
were suspended and (ii) reinstate any of its obligations which were suspended.
(b) If the Employee is removed and/or permanently prohibited from
participating in the conduct of the Savings Bank's affairs by an order issued
under Sections 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance Act ("FDIA")
(12 U.S.C. 1818(e)(4) and (g)(1)), all obligations of the Savings Bank under
this Agreement shall terminate, as of the effective date of the order, but the
vested rights of the parties shall not be affected.
(c) If the Savings Bank is in default (as defined in Section 3(x)(1) of
FDIA) all obligations under this Agreement shall terminate as of the date of
default, but this paragraph shall not affect any vested rights of the
contracting parties.
5
(d) All obligations under this Agreement shall be terminated, except to
the extent determined that continuation of this Agreement is necessary for the
continued operation of the Savings Bank: (i) by the Director of the Office of
Thrift Supervision ("Director of OTS"), or his or her designee, at the time that
the Federal Deposit Insurance Corporation ("FDIC") enters into an agreement to
provide assistance to or on behalf of the Savings Bank under the authority
contained in Section 13(c) of FDIA; or (ii) by the Director of the OTS, or his
or her designee, at the time that the Director of the OTS, or his or her
designee approves a supervisory merger to resolve problems related to operation
of the Savings Bank or when the Savings Bank is determined by the Director of
the OTS to be in an unsafe or unsound condition. Any rights of the parties that
have already vested, however, shall not be affected by such action.
(e) Notwithstanding anything herein to the contrary, any payments made
to the Employee pursuant to the Agreement, or otherwise, shall be subject to and
conditioned upon compliance with 12 USC Section 1828(k) and any regulations
promulgated thereunder.
11. Disability. If the Employee shall become disabled or incapacitated
to the extent that he is unable to perform his duties hereunder, by reason of
medically determinable physical or mental impairment, as determined by a doctor
engaged by the Board of Directors, Employee shall nevertheless continue to
receive the compensation and benefits provided under the terms of this Agreement
in accordance with the Savings Bank's disability policy as in effect on the date
she becomes disabled. Such benefits noted herein shall be reduced by any
benefits otherwise provided to the Employee during such period under the
provisions of disability insurance coverage in effect for Savings Bank
employees. Thereafter, Employee shall be eligible to receive benefits provided
by the Savings Bank under the provisions of disability insurance coverage in
effect for Savings Bank employees. Upon returning to active full-time
employment, the Employee's full compensation as set forth in this Agreement
shall be reinstated as of the date of commencement of such activities. In the
event that the Employee returns to active employment on other than a full-time
basis, then his compensation (as set forth in Section 2 of this Agreement) shall
be reduced in proportion to the time spent in said employment, or as shall
otherwise be agreed to by the parties.
12. Change in Control.
(a) Notwithstanding any provision herein to the contrary, in the event
of the involuntary termination of Employee's employment during the Term of this
Agreement following any change in control of the Savings Bank or Parent, absent
Just Cause, Employee shall be paid an amount equal to the product of 2.999 times
the aggregate taxable compensation paid to the Employee by the Bank and the
Parent during the one year period preceding the date of such Change in Control.
Said sum shall be paid by the Bank to the Employee not
6
later than on the date of such termination of employment, and such payments
shall be in lieu of any other future payments which the Employee would be
otherwise entitled to receive under Section 9 of this Agreement. Notwithstanding
the forgoing, all sums payable hereunder shall be reduced in such manner and to
such extent so that no such payments made hereunder when aggregated with all
other payments to be made to the Employee by the Savings Bank or the Parent
shall be deemed an "excess parachute payment" in accordance with Section 280G of
the Internal Revenue Code of 1986, as amended, and regulations promulgated
thereunder ("Code") and subject the Employee to the excise tax set forth at
Section 4999(a) of the Code. The term "control" shall refer to the ownership,
holding or power to vote more than 25% of the Parent's or Savings Bank's voting
stock, the control of the election of a majority of the Parent's or Savings
Bank's directors, or the exercise of a controlling influence over the management
or policies of the Parent or Savings Bank by any person or by persons acting as
a group within the meaning of Section 13(d) of the Securities Exchange Act of
1934. The term "person" means an individual other than the Employee, or a
corporation, partnership, trust, association, joint venture, pool, syndicate,
sole proprietorship, unincorporated organization or any other form of entity not
specifically listed herein. The provisions of this Section shall survive the
expiration of this Agreement.
(b) Notwithstanding any other provision of this Agreement to the
contrary, Employee may voluntarily terminate his employment during the Term of
this Agreement following a change in control of the Savings Bank or Parent, and
Employee shall thereupon be entitled to receive the payment described in Section
12(a) of this Agreement, upon the occurrence, or within ninety (90) days
thereafter, of any of the following events, which have not been consented to in
advance by the Employee in writing: (i) if Employee would be required to move
his personal residence or perform his principal executive functions more than
thirty-five (35) miles from the Employee's primary office as of the signing of
this Agreement; (ii) if in the organizational structure of the Savings Bank or
Parent, Employee would be required to report to a person or persons other than
the Board of the Savings Bank or Parent; (iii) if the Savings Bank or Parent
should fail to maintain Employee's base compensation in effect as of the date of
the Change in Control and the existing employee benefits plans, including
material fringe benefit, stock option and retirement plans, except to the extent
that such reduction in benefit programs is part of an overall adjustment in
benefits for all employees of the Savings Bank or Parent and does not
disproportionately adversely impact the Employee; (iv) if Employee would be
assigned duties and responsibilities other than those normally associated with
his position as referenced at Section 1, herein; (v) if Employee would not be
elected or reelected to the Board of Directors of the Savings Bank; or (vi) if
Employee's responsibilities or authority have in any way been materially
diminished or reduced. The provisions of this Section shall survive the
expiration of this Agreement.
7
13. Successors and Assigns.
(a) This Agreement shall inure to the benefit of and be binding upon
any corporate or other successor of the Savings Bank or Parent which shall
acquire, directly or indirectly, by merger, consolidation, purchase or
otherwise, all or substantially all of the assets or stock of the Savings Bank
or Parent.
(b) Since the Savings Bank is contracting for the unique and personal
skills of the Employee, the Employee shall be precluded from assigning or
delegating his rights or duties hereunder without first obtaining the written
consent of the Savings Bank.
14. Amendments. No amendments or additions to this Agreement shall be
binding upon the parties hereto unless made in writing and signed by both
parties, except as herein otherwise specifically provided.
15. Applicable Law. This agreement shall be governed by all respects
whether as to validity, construction, capacity, performance or otherwise, by the
laws of the State of Pennsylvania, except to the extent that Federal law shall
be deemed to apply.
16. 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.
17. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the rules then in effect of the district office of the American
Arbitration Association ("AAA") nearest to the home office of the Savings Bank,
and judgment upon the award rendered may be entered in any court having
jurisdiction thereof, except to the extend that the parties may otherwise reach
a mutual settlement of such issue. The Savings Bank shall reimburse Employee for
all reasonable costs and expenses, including reasonable attorneys' fees, arising
from such dispute, proceedings or actions, following the delivery of the
decision of the arbitrator finding in favor of the Employee. Further, the
settlement of the dispute to be approved by the Board of the Savings Bank or the
Parent may include a provision for the reimbursement by the Savings Bank or
Parent to the Employee for all reasonable costs and expenses, including
reasonable attorneys' fees, arising from such dispute, proceedings or actions,
or the Board of the Savings Bank or the Parent may authorize such reimbursement
of such reasonable costs and expenses by separate action upon a written action
and determination of the Board
8
following settlement of the dispute. The provisions of this Section shall
survive the expiration of this Agreement.
18. Entire Agreement. This Agreement together with any understanding or
modifications thereof as agreed to in writing by the parties, shall constitute
the entire agreement between the parties hereto, and shall amend and supercede
all prior agreements.
9
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and first hereinabove written.
Workingmens Bank
ATTEST: By:
--------------------------------
----------------------------------
Secretary
WITNESS:
---------------------------------- -----------------------------------
Xxxxxx X. Xxxxxxxxx, Employee
