Exhibit 10.23
CHANGE-IN-CONTROL AGREEMENT
This AGREEMENT is made effective as of___________________ 2004, by and
among Waypoint Bank (the "Bank" a federally-chartered savings bank, with its
principal administrative office at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx, 00000, Waypoint Financial Corp. (the "Holding Company"), a
corporation organized under the laws of the Commonwealth of Pennsylvania which
is the holding company for the Bank, and _________________ (the "Executive").
WHEREAS, the Bank recognizes the substantial contribution Executive has
made to the Bank and wishes to protect Executive's position therewith in the
event of a Change-in-Control for the period provided in this Agreement; and
WHEREAS, Executive has been appointed to, and has agreed to serve in
the position of Senior Vice President, ____________________ for Waypoint Bank, a
position of substantial responsibility.
NOW, THEREFORE, in consideration of the contribution and
responsibilities of Executive, and upon the other terms and conditions
hereinafter provided, the parties hereto agree as follows:
1. TERM OF AGREEMENT.
The term of this agreement shall be deemed to have commenced as of the
date first above written and shall continue for a period of twenty-four (24)
full calendar months thereafter. The Agreement will be up for consideration for
renewal each February, after the Board of Directors completes a formal
performance evaluation of the Executive. The purpose of this evaluation will be
to determine whether or not to extend the Agreement. The results of this
evaluation will be included in the Minutes of the next Board Meeting. The
Agreement will renew for an additional year so that the remaining term shall be
two (2) years unless written notice is provided to the Executive at least ten
(10) days, but not more than twenty (20) days prior to the anniversary date,
that this Agreement shall cease at the end of the twelve (12) months following
such anniversary date.
2. PAYMENT TO THE EXECUTIVE UPON CHANGE-IN-CONTROL.
(a) Upon the occurrence of a Change-in-Control of the Bank or the
Holding Company (as herein defined) followed at any time during the term of this
Agreement by the "justified voluntary" (for any of the bases set below) or
involuntary termination of Executive's employment, other than for Cause, as
defined in Section 2(c) hereof, the provisions of Section 3 shall apply. Upon
the occurrence of a Change-in-Control,
Executive shall have the right to elect to "justifiably voluntarily" terminate
his/her employment at any time during the term of this Agreement following any
material reduction in salary or benefits; relocation of his/her principal place
of employment to more than 35 miles from its location immediately prior to the
Change-in-Control; or a material reduction in his/her authority or
responsibility relative to similarly experienced and compensated employees of
the surviving or acquiring entity.
(b) "Change-in-Control" shall mean an event of a nature that: (i) would
be required to be reported in response to Item 1 of the current report on Form
8-K, as in effect on the date hereof, pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); or (ii) results in a
Change-in-Control of the Bank or the Holding Company within the meaning of the
Change in Bank Control Act and the Rules and Regulations promulgated by the
Federal Deposit Insurance Corporation ("FDIC") at 12 C.F.R. ss. 303.4 (a) with
respect to the Bank and the Board of Governors of the Federal Reserve System
("FRB") at 12 C.F.R. ss. 225.41(b) with respect to the Stock Holding Company, as
in effect on the date hereof; or (iii) without limitation such a
Change-in-Control shall be deemed to have occurred at such time as (a) any
"person" (as the term is used in Sections 13(d) and 14(d) of the Exchange Act)
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of Securities of the Bank or the Holding
Company representing 20% or more of the Bank's or the Holding Company's
outstanding securities except for any securities of the Bank purchased by the
Holding Company in connection with the conversion of the Company to the stock
form and any securities purchased by the Bank's employee stock ownership plan
and trust; or (b) individuals who constitute the Board on the date hereof (the
"Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the date
hereof whose election was approved by a vote of at least three-quarters of the
directors comprising the Incumbent Board, or whose nomination for election by
the Holding Company's stockholders was approved by the same Nominating Committee
serving under an Incumbent Board, shall be, for purposes of this clause (b),
considered as though he/she were a member of the Incumbent Board; or (c) a plan
of reorganization, merger, consolidation, sale of all or substantially all the
assets of the Bank or Holding Company or similar transaction occurs in which the
Bank or Holding Company is not the resulting entity; or (d) a proxy statement
shall be distributed soliciting proxies from stockholders of the Holding
Company, by someone other than the current management of the Holding Company,
seeking stockholder approval of a plan of reorganization, merger, or
consolidation of the Holding Company or Bank or similar transaction with one or
more corporations as a result of which the outstanding shares of the class of
securities then subject to such plan or transaction are exchanged for or
converted into cash or property or securities not issued by the Bank or the
Holding Company; or (e) a tender offer is made and accepted for 20% or more of
the voting securities of the Bank or Holding Company then outstanding.
(c) Executive shall not have the right to receive termination benefits
pursuant to Section 3 hereof upon Termination for Cause. The term "Termination
for Cause" shall mean termination because of the Executive's personal
dishonesty, willful misconduct,
any 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 material provision of this Agreement. For purposes of
this Section, no act, or the failure to act on Executive's part shall be
"willful" unless done or omitted to be done, not in good faith and without
reasonable belief that the action or omission was in the best interests of the
Holding Company or the Bank. Notwithstanding the foregoing, Executive shall not
be deemed to have been Terminated for Cause unless and until there shall have
been delivered to him/her a Notice of Termination which shall include a copy of
a resolution duly adopted by the affirmative vote of not less than two-thirds of
the members of the Board at a meeting of the Board called and held for that
purpose (after reasonable notice to the Executive and an opportunity for
him/her, together with counsel, to be heard before the Board), finding that in
good faith opinion of the Board, the Executive was guilty of conduct justifying
Termination for Cause and specifying the particulars thereof in detail. The
Executive shall not have the right to receive compensation or other benefits for
any period after Termination for Cause. Any stock options or limited rights
granted to Executive under any stock option plan or any unvested awards granted
to Executive under a Recognition and Retention Plan of the Bank, the Company or
any subsidiary or affiliate thereof, shall become null and void effective upon
Executive's receipt of Notice of Termination for Cause and shall not be
exercisable by Executive at any time subsequent to such Termination for Cause.
3. TERMINATION BENEFITS.
(a) Upon the occurrence of a Change-in-Control, followed at any time
during the term of this Agreement by the justified voluntary or involuntary
termination of the Executive's employment other than for Termination for Cause,
the Bank and the Company shall pay the Executive, or in the event of his/her
subsequent death, his/her beneficiary or beneficiaries, or his/her estate, as
the case may be, as severance pay or liquidated damages, or both, a sum equal to
two (2) times the Executive's annual base salary (net of bonus and other
compensation). In addition, Executive shall be entitled to such benefits as are
otherwise payable to Executive under the Company's or the Bank's plans upon a
Change-in-Control. Such payment shall be made in a lump sum.
(b) Upon the occurrence of a Change-in-Control of the Bank or the
Holding Company followed at any time during the term of this Agreement by the
Executive's "justified voluntary" or involuntary termination of employment,
other than for Termination for Cause, the Bank shall cause to be continued life,
medical, dental and disability coverage substantially identical to the coverage
maintained by the Bank for the Executive prior to his/her severance. Such
coverage and payments shall cease upon the expiration of twelve (12) months.
(c) Upon the occurrence of a Change-in-Control, the Executive shall be
entitled to receive benefits due him/her under, or contributed by the Bank on
his/her behalf pursuant to any retirement, deferred compensation, incentive,
profit sharing, bonus, performance, disability or other employee benefit plan
maintained by the Bank on
the Executive's behalf to the extent that such benefits are not otherwise paid
to the Executive under a separate provision of this Agreement.
4. NOTICE OF TERMINATION.
(a) Any purported termination by the Bank, the Holding Company or by
Executive shall be communicated by Notice of Termination to the other party
hereto. For purposes of this Agreement, a "Notice of Termination" shall mean a
written notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
(b) "Date of Termination" shall mean the date specified in the Notice
of Termination, which, in the instance of Termination for Cause, shall be
immediate.
5. SOURCE OF PAYMENTS.
(a) It is intended by the parties hereto that all payments provided in
this Agreement shall be paid in cash or check from the general funds of the
Bank. The Holding Company, however, guarantees payment and provision of all
amounts and benefits due hereunder to the Executive and, if such amounts and
benefits due from the Bank are not timely paid or provided by the Bank, such
amounts and benefits shall be paid or provided by the Holding Company.
6. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS.
(a) This Agreement contains the entire understanding between the
parties hereto and supersedes any prior agreement between the Bank and the
Executive, except that this Agreement shall not affect or operate to reduce any
benefit or compensation inuring to the Executive of a kind elsewhere provided.
No provision of this Agreement shall be interpreted to mean that the Executive
is subject to receiving fewer benefits than those available to him/her without
reference to this Agreement.
(b) Nothing in this Agreement shall confer upon the Executive the right
to continue in the employ of Bank or the Holding Company or their affiliates or
shall impose on the Bank, the Holding Company or their affiliates any obligation
to employ or retain the Executive in its employ for any period.
7. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
the Executive, the Bank, the Holding Company and their respective successors and
assigns.
8. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there by any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than that
specifically waived.
9. REQUIRED REGULATORY PROVISIONS.
The Board may terminate the Executive's employment at any time, but any
termination by the Board, other than Termination for Cause, shall not prejudice
the Executive's right to compensation or other benefits under the Agreement. The
Executive shall not have the right to receive compensation or other benefits for
any period after Termination for Cause as defined in Section 2 herein above. The
provisions of the Office of Thrift Supervision ("OTS") regulations governing
employment controls as set forth in 12 C.F.R. ss. 563.39 Employment Controls,
are incorporated herein by reference.
10. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
11. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
the convenience of reference and shall not control the meaning or interpretation
of any of the provisions of this Agreement.
12. GOVERNING LAW.
The validity, interpretation, performance, and enforcement of this
Agreement shall be governed by Pennsylvania law.
13. ARBITRATION.
(a) Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration in accordance with the
rules of the American Arbitration Association then in effect. Judgment may be
entered on the arbitrator's award in any court having jurisdiction provided,
however, that the Executive shall be entitled to seek specific performance of
his/her right to be paid until the Date of Termination during the pendency of a
dispute or controversy arising under or in connection with this Agreement.
(b) In the event any dispute or controversy arising under or in
connection with Executive's termination is resolved in favor of the Executive,
whether by judgment, arbitration or settlement, Executive shall be entitled to
the payment of all back-pay, including salary, bonuses and any other cash
compensation, fringe benefits and any compensation and benefits due Executive
under this Agreement.
14. PAYMENT OF COSTS AND LEGAL FEES.
All reasonable costs and legal fees paid or incurred by the Executive
pursuant to any dispute or question of interpretation relating to this Agreement
shall be paid or reimbursed by the Bank (which payments are guaranteed by the
Holding Company pursuant to Section 5 hereof) if Executive is successful
pursuant to legal judgment, arbitration or settlement.
15. INDEMNIFICATION.
(a) The Bank shall provide Executive (including his/her legal
representatives, successors, and assigns) with coverage under a standard
directors' and officers' liability insurance policy at its expense, or in lieu
thereof, shall indemnify Executive (including his/her legal representatives,
successors and assigns) to the fullest extent permitted under Pennsylvania law
against all expenses and liabilities reasonably incurred by Executive in
connection with or arising out of any action, suit or proceeding in which he/she
may be involved by reason of his/her having been a trustee or officer of the
Bank (whether or not he/she continues to be a trustee or officer at the time of
incurring such expenses or liabilities). Such expenses or liabilities may
include, but not be limited to, judgments, court costs and attorneys' fees and
the cost of reasonable settlements for reasonable costs and expenses incurred by
Executive in defending or settling any judicial or administrative proceeding, or
threatened proceeding, whether civil, criminal, or otherwise, including any
appeal or other proceeding for review.
(b) Indemnification by the Bank shall be made only upon the final
judgment on the merits in favor of the Executive, in case of settlement, in case
of final judgment against Executive or in the case of final judgment in favor of
Executive other than on the merits, if a majority of the disinterested directors
of the Bank determine Executive was acting in good faith within the scope of
Executive's employment or authority.
(c) Any such indemnification of Executive for such expenses and
liabilities are to include, but not be limited to, judgments, court costs and
attorneys' fees and the cost of reasonable settlements, such settlements to be
approved by the Board of Directors of the Bank, if such action is brought
against the Executive in his/her capacity as an officer or trustee of the Bank,
provided however, such indemnity shall not exceed to matters as to which the
Executive is finally adjudged to be liable for willful misconduct in the
performance of his/her duties.
16. SUCCESSOR TO THE BANK.
(a) The Bank shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank or the Holding Company,
expressly and unconditionally to assume and agree to perform the Bank's
obligations under this Agreement, in the same manner and to the same extent that
the Bank would be required to perform if no such succession or assignment had
taken place.
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17. SIGNATURES.
IN WITNESS WHEREOF, Waypoint Bank and Waypoint Financial Corp. have
caused this Agreement to be executed by their duly authorized officers, and
Executives have signed this Agreement, on the _____ day of ______________, 2004.
SEAL
ATTEST: WAYPOINT BANK
____________________________ BY: __________________________
Corporate Secretary President/Chief Executive Officer
SEAL
ATTEST: WAYPOINT FINANCIAL CORP.
(GUARANTOR)
_____________________________ BY: __________________________
Corporate Secretary Chairman
SEAL
WITNESS: EXECUTIVE
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(NAMED EXECUTIVE)
ADDENDUM TO
CHANGE-IN-CONTROL AGREEMENET
WITH ________________
This Addendum to Change-in-Control Agreement is entered into effective
this ____________ day of _____________________, 2004, by and between WAYPOINT
FINANCIAL CORP., a Pennsylvania stock corporation (the "Company") and the
holding company of Waypoint Bank (the "Bank") and __________________
("Executive").
RECITALS:
---------
A. In connection with the approval of the merger (the "Merger") of York
Financial Corp. ("York Financial") with and into the Company, the Office of
Thrift Supervision ("OTS") stated by Order No. 2000-75, dated August 14, 2000,
that any agreements constituting "employment agreements" with the Bank (but not
the Company) within the meaning of 12 C.F.R. ss. 563.39 could not be entered
into without first obtaining the non-objection of the Regional Director of the
OTS, which non-objection has not yet been received; and
B. The Company desires to assume the obligations of the Bank under the
Change-in-Control Agreement as it relates to the employment of Executive until
such time as the OTS issues a letter of non-objection to the Change-in-Control
Agreement in the form attached as Exhibit 1.
For good and valuable consideration, the receipt of which is hereby
acknowledged and based on the mutual covenants and agreements herein contained,
the parties hereby agree as follows:
1. The Executive and the Company shall be parties to and shall honor
the terms and conditions of the Change-in-Control Agreement attached hereto as
Exhibit 1, and any reference to the Bank in Exhibit 1 shall be deemed to be the
Company so long as this Agreement remains in effect.
2. Upon the receipt by the Bank or the Company of the OTS non-objection
to the form of Change-in-Control Agreement substantially in the form of Exhibit
1, this Addendum to Change-in-Control Agreement shall have no further force and
effect with respect to the Company, but shall automatically and without further
action by either Executive or the Company become the Change-in-Control Agreement
between the Bank and Executive; provided, however, that any changes requested or
required by the OTS with respect to the form of Change-in-Control Agreement
submitted to the OTS shall be made to Exhibit 1 and shall become a part of the
Change-in-Control Agreement between the Bank and Executive.
3. Notwithstanding Sections 1 and 2 above, upon receipt of the
non-objection from the OTS, at the Company's request, Executive shall execute a
new Change-in-Control Agreement that includes any changes that the Bank has made
pursuant to OTS comments or requirements. In the event that Executive does not
execute a new Change-in-Control Agreement reflecting OTS comments or
requirements, the Bank, as the successor to the Company, shall have the right to
terminate the Change-in-Control Agreement and Executive shall have no recourse
against the Bank or the Company as a result of such termination.
This Agreement has been executed by a duly authorized officer of the
Company and the Executive, effective as of the date first above written.
ATTEST: WAYPOINT FINANCIAL CORP.
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By: Xxxxxxx X. Xxxxxxx, Xx.
Title: Chairman
WITNESS: EXECUTIVE
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(NAMED EXECUTIVE)
