Exhibit 10
EMPLOYMENT AGREEMENT
This Agreement is made effective as of October __, 2005 by and between
Wayne Savings Community Bank (the "Bank"), an Ohio savings and loan association,
with its principal administrative office at 151 North Market Street, Wooster,
Ohio and H. Stewart Fitz Gibbon III (the "Executive"). Any reference to
"Company" herein shall mean Wayne Savings Bancshares, Inc. the stock holding
company parent of the Bank or any successor thereto.
WHEREAS, the Bank wishes to assure itself of the continued services of
Executive for the period provided in this Agreement; and
WHEREAS, Executive is willing to continue to serve in the employ of the
Bank on a full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES
During the period of his employment hereunder, Executive agrees to
serve as Senior Vice President and Chief Financial Officer of the Bank (the
"Executive Position"). As Senior Vice President and Chief Financial Officer, the
Executive shall be the principal financial and accounting officer of the Bank,
and shall be responsible for the financial and accounting function at the Bank,
including financial reporting, preparation of periodic securities reports filed
with the Securities and Exchange Commission, and preparation of financial
reports filed with the Bank's banking regulators. During said period, Executive
also agrees to serve, if elected, as an officer of any subsidiary or affiliate
of the Bank. Failure to reelect Executive to the Executive Position without the
consent of the Executive during the term of this Agreement (except for any
termination for Cause, as defined herein) shall constitute a breach of this
Agreement.
2. TERMS AND DUTIES
(a) The period of Executive's employment under this Agreement shall
begin as of the date first above written and shall continue for a period of
twenty-four full calendar months thereafter. Within thirty days prior to the
first anniversary date of this Agreement, and within thirty days prior to each
anniversary date thereafter, the Board of Directors of the Bank ("Board") will
conduct a performance evaluation and review of the Executive for purposes of
determining whether to extend the Agreement, and the results thereof shall be
included in the minutes of the Board's meeting and communicated to Executive.
Upon a favorable performance evaluation, the Board shall renew the term of the
Agreement for an additional year from the anniversary date such that the
remaining term shall be two years; provided, however, if written notice of
nonrenewal is provided to Executive at least ten days and not more than thirty
days prior to any anniversary date, the Agreement shall expire at the end of
twenty-four months following such anniversary date.
(b) During the period of his employment hereunder, except for periods
of absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, Executive shall devote substantially all his business time,
attention, skill, and efforts to the faithful performance of his duties
hereunder including activities and services related to the organization,
operation and management of the Bank; provided, however, that, with the approval
of the Board, as evidenced by a resolution of such Board, from time to time,
Executive may serve, or continue to serve, on the boards of directors of, and
hold any other offices or positions in, business companies or business
organizations, which, in such Board's judgment, will not present any conflict of
interest with the Bank, or materially affect the performance of Executive's
duties pursuant to this Agreement (for purposes of this Section 2(b), Board
approval shall be deemed provided as to service with any such business companies
or organizations that Executive was serving as of the date of this Agreement).
3. COMPENSATION AND REIMBURSEMENT.
(a) The compensation specified under this Agreement shall constitute
the salary and benefits paid for the duties described in Section 2(b). The Bank
shall pay Executive as compensation a salary of not less than $______ per year
("Base Salary"). Such Base Salary shall be payable biweekly. During the period
of this Agreement, Executive's Base Salary shall be reviewed at least annually.
Such review shall be conducted by a Committee designated by the Board, and the
Board may increase, but not decrease (except a decrease that is generally
applicable to all employees), Executive's Base Salary (any increase in Base
Salary shall become the "Base Salary" for purposes of this Agreement). In
addition to the Base Salary provided in this Section 3(a), the Bank shall
provide Executive at no cost to Executive with all such other benefits as are
provided uniformly to permanent full-time employees of the Bank. Base Salary
shall include any amounts of compensation deferred by Executive under qualified
and nonqualified plans maintained by the Bank.
(b) The Bank will provide Executive with employee benefit plans,
arrangements and perquisites substantially equivalent to those in which
Executive was participating or otherwise deriving benefit from immediately prior
to the beginning of the term of this Agreement, and the Bank will not, without
Executive's prior written consent, make any changes in such plans, arrangements
or perquisites which would adversely affect Executive's rights or benefits
thereunder, except as to any changes that are applicable to all employees or as
reasonably or customarily available. Without limiting the generality of the
foregoing provisions of this Subsection (b), Executive will be entitled to
participate in or receive benefits under any employee benefit plans including
but not limited to, retirement plans, supplemental retirement plans, pension
plans, profit-sharing plans, health-and-accident plans, medical coverage or any
other employee benefit plan or arrangement made available by the Bank in the
future to its senior executives and key management employees, subject to and on
a basis consistent with the terms, conditions and overall administration of such
plans and arrangements. Executive will be entitled to incentive compensation and
bonuses as provided in any plan of the Bank in which Executive is eligible to
participate (and he shall be entitled to a pro rata distribution under any
incentive compensation or bonus plan as to any year in which a termination of
employment occurs, other than termination for Cause). Nothing paid to the
Executive under any such plan or arrangement
2
will be deemed to be in lieu of other compensation to which the Executive is
entitled under this Agreement.
(c) In addition to the Base Salary provided for by paragraph (a) of
this Section 3, the Bank shall pay or reimburse Executive for all reasonable
travel and other reasonable expenses incurred by Executive performing his
obligations under this Agreement and may provide such additional compensation in
such form and such amounts as the Board may from time to time determine.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during the Executive's term of employment under this Agreement, the provisions
of this Section shall apply. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following: (i) the
termination by the Bank or the Company of Executive's full-time employment
hereunder for any reason other than (A) termination for Cause (as defined in
Section 7 hereof), (B) upon Retirement (as defined in Section 6 hereof), or (C)
for Disability (as set forth in Section 5 hereof); (ii) Executive's resignation
from the Bank's employ following (A) any failure to elect or reelect or to
appoint or reappoint Executive to the Executive Position, (B) a material change
in Executive's function, duties, or responsibilities, which change would cause
Executive's position to become one of lesser responsibility, importance, or
scope from the position and attributes thereof described in Section 1 above, to
which Executive has not agreed in writing (and any such material change shall be
deemed a continuing breach of this Agreement), (C) a relocation of Executive's
principal place of employment to a location more than 30 miles outside the City
of Wooster, or a material reduction in the benefits and perquisites, including
Base Salary, to the Executive from those being provided as of the effective date
of this Agreement (except for any reduction that is part of an employee-wide
reduction in pay or benefits), (D) a liquidation or dissolution of the Bank or
the Company, or (E) material breach of this Agreement by the Bank; and (iii) the
event specified in Section 4(b) hereof. Upon the occurrence of any event
described in clauses (ii) (A), (B), (C), (D) or (E) above, Executive shall have
the right to elect to terminate his employment under this Agreement by
resignation upon not less than thirty (30) days prior written notice given
within a reasonable period of time (not to exceed, except in case of a
continuing breach, four calendar months) after the event giving rise to said
right to elect, which termination by Executive shall be an Event of Termination.
No payments or benefits shall be due to Executive under this Agreement upon the
termination of Executive's employment except as provided in Sections 3, 4 or 5
hereof.
(b) As used in this Agreement, an Event of Termination shall also mean
and include Executive's involuntary termination or voluntary resignation from
the Bank's employ on the effective date of, or at any time following, a Change
in Control during the term of this Agreement. For these purposes, a Change in
Control of the Bank or the Company shall mean a change in control of a nature
that: [(i) would be required to be reported in response to Item 1(a) 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 1934 (the "Exchange Act")]; or
(ii) results in a Change in Control of the Bank or the Company within the
meaning of the Bank Holding Company Act ("BHCA"), as amended, and applicable
rules and regulations promulgated
3
thereunder (collectively, the "BHCA") as in effect at the time of the Change in
Control; 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 Company representing 25% or more of the combined voting power
of Company's outstanding securities, except for any securities purchased by the
Bank's employee stock ownership plan or 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 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 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 the Company or similar
transaction in which the Bank or Company is not the surviving institution
occurs; or (d) a proxy statement soliciting proxies from stockholders of the
Company, by someone other than the current management of the Company, seeking
stockholder approval of a plan of reorganization, merger or consolidation of the
Company or similar transaction with one or more corporations as a result of
which the outstanding shares of the class of securities then subject to the plan
are to be exchanged for or converted into cash or property or securities not
issued by the Company; or (e) a tender offer is made for 25% or more of the
voting securities of the Company and the shareholders owning beneficially or of
record 25% or more of the outstanding securities of the Company have tendered or
offered to sell their shares pursuant to such tender offer and such tendered
shares have been accepted by the tender offeror.
(c) Upon the occurrence of an Event of Termination, as defined in
Section 4(a) or 4(b), the Bank shall pay Executive, or, in the event of his
subsequent death, his beneficiary or beneficiaries, or his estate, as the case
may be, as severance pay or liquidated damages, or both, a cash amount equal to
the greater of the payments due for the remaining term of the Agreement, or two
(2) times the sum of: (i) the highest annual rate of Base Salary paid to
Executive at any time under this Agreement, and (ii) the greater of (x) the
average annual cash bonus paid to Executive with respect to the two completed
fiscal years prior to the Event of Termination, or (y) the cash bonus paid to
Executive with respect to the fiscal year ended prior to the Event of
Termination; provided however, that if the Bank is not in compliance with its
minimum capital requirements or if such payments would cause the Bank's capital
to be reduced below its minimum capital requirements, such payments shall be
deferred until such time as the Bank is in capital compliance. At the election
of the Executive, which election may be made annually by January 31 of each year
and is irrevocable for the year in which made (and once payments commence), such
payments shall be made in a lump sum or paid quarterly during the remaining term
of the agreement following the Executive's termination. In the event that no
election is made, payment to the Executive will be made on a quarterly basis
during the remaining term of the Agreement. Such payments shall not be reduced
in the event the Executive obtains other employment following termination of
employment.
(d) Upon the occurrence of an Event of Termination, the Bank will cause
to be continued life, medical and dental coverage substantially comparable, as
reasonably or
4
customarily available, to the coverage maintained by the Bank for Executive
prior to his termination, except to the extent such coverage may be changed in
its application to all Bank employees or is not available on an individual basis
to a terminated employee. Such coverage shall cease twenty-four (24) months
following the Event of Termination.
(e) Notwithstanding anything to the contrary in this Agreement, in
the event that:
(i) the aggregate payments or benefits to be made or
afforded to Executive (the "Termination Benefits")
would be deemed to include an "excess parachute
payment" under Section 280G of the Code or any
successor thereto, and
(ii) if such Termination Benefits were reduced to an
amount (the "Non-Triggering Amount"), the value of
which is one dollar ($1.00) less than an amount equal
to the total amount of payments permissible under
Section 280G of the Code or any successor thereto,
then the Termination Benefits to be paid to Executive shall be so reduced so as
to be a Non-Triggering Amount. The allocation of the reduction required hereby
among Termination Benefits provided by the preceding paragraphs of this Section
4 shall be determined by the Executive.
5. TERMINATION FOR DISABILITY.
(a) If, as a result of Executive's incapacity due to physical or mental
illness, he shall have been absent from his duties with the Bank or the Company
on a full-time basis for six (6) consecutive months, and within thirty (30) days
after written notice of potential termination is given he shall not have
returned to the full-time performance of his duties, the Bank may terminate
Executive's employment for "Disability."
(b) The Bank will pay Executive, as disability pay, a bi-weekly payment
equal to 75% of the Executive's bi-weekly rate of Base Salary on the effective
date of such termination. These disability payments shall commence on the
effective date of Executive's termination and will end on the earlier of (i) the
date Executive returns to the full-time employment of the Bank in the same
capacity as he was employed prior to his termination for Disability and pursuant
to an employment agreement between Executive and the Bank; (ii) Executive's
full-time employment by another employer; (iii) Executive attaining a Retirement
age as identified in Section 6; or (iv) Executive's death. The disability pay
shall be reduced by the amount, if any, paid to the Executive under any plan of
the Bank or the Company providing disability benefits to the Executive.
(c) The Bank will cause to be continued life, medical, and dental
coverage substantially comparable, as reasonable or customarily available, to
the coverage maintained by the Bank for Executive prior to his termination for
Disability, except to the extent such coverage may be changed in its application
to all Bank employees. This coverage shall cease upon the earlier of (i) the
date Executive returns to the full-time employment of the Bank in the same
5
capacity as he was employed prior to his termination for Disability and pursuant
to an employment agreement between Executive and the Bank; (ii) Executive's
full-time employment by another employer; (iii) Executive attaining the
Retirement age as identified in Section 6; or (iv) Executive's death.
(d) Notwithstanding the foregoing, there will be no reduction in the
compensation otherwise payable to Executive during any period during which
Executive is incapable of performing his duties hereunder by reason of temporary
disability.
6. TERMINATION UPON RETIREMENT.
Termination by the Bank of the Executive based on "Retirement" shall
mean termination of executive in accordance with any retirement policy
established with Executive's consent with respect to him. Upon termination of
Executive upon Retirement, no amounts or benefits shall be due Executive under
this Agreement and the Executive shall be entitled to all benefits under any
retirement plan of the Bank and other plans to which Executive is a party.
7. TERMINATION FOR CAUSE.
The term "Termination for Cause" shall mean termination because of the
Executive's personal dishonesty, incompetence, 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 provision of this Agreement. Notwithstanding the foregoing,
Executive shall not be deemed to have been Terminated for Cause unless and until
there shall have been delivered to him a copy of a resolution duly adopted by
the affirmative vote of not less than a majority of the members of the Board at
a meeting of the Board called and held for that purpose (after reasonable notice
to Executive and an opportunity for him, together with counsel, to be heard
before the Board), finding that in the good faith opinion of the Board,
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 non-vested stock options or restricted stock granted to Executive
under any stock option plan or restricted stock 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 pursuant to Section 8
hereof, and any non-vested stock options shall not be exercisable by Executive
at any time subsequent to such Termination for Cause, (unless it is determined
in arbitration that grounds for termination of Executive for Cause did not
exist, in which event all terms of the options or restricted stock as of the
date of termination shall apply, and any time periods for exercising such
options shall commence from the date of resolution in arbitration).
8. NOTICE.
(a) Any purported termination by the Bank for Cause shall be
communicated by Notice of Termination to the Executive. For purposes of this
Agreement, a "Notice of Termination" shall mean a written notice which shall
indicate the specific termination provision
6
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. If, within thirty (30) days after
any Notice of Termination for Cause is given, the Executive notifies the Bank or
the Company that a dispute exists concerning the termination, the parties shall
promptly proceed to arbitration. Notwithstanding the pendency of any such
dispute, the Bank and the Company may discontinue to pay Executive compensation
until the dispute is finally resolved in accordance with this Agreement. If it
is determined that Executive is entitled to compensation and benefits under
Section 4 of this Agreement, the payment of such compensation and benefits by
the Bank and Company shall commence immediately following the date of resolution
by arbitration, with interest due Executive on the cash amount that would have
been paid pending arbitration (at the prime rate as published in the Wall Street
Journal from time to time).
(b) Any other purported termination by the Bank or by Executive shall
be communicated by a Notice of Termination to the other party. 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 detail the facts and circumstances claimed to provide a
basis for termination of employment under the provision so indicated. "Date of
Termination" shall mean the date of the Notice of Termination. If, within thirty
(30) days after any Notice of Termination is given, the party receiving such
Notice of Termination notifies the other party that a dispute exists concerning
the termination, the parties shall promptly proceed to arbitration as provided
in Section 18 of this Agreement. Notwithstanding the pendency of any such
dispute, the Bank shall continue to pay the Executive his Base Salary, and other
compensation and benefits in effect when the notice giving rise to the dispute
was given (except as to termination of Executive for Cause). In the event of the
voluntary termination by the Executive of his employment, which is disputed by
the Bank, and if it is determined in arbitration that Executive is not entitled
to termination benefits pursuant to this Agreement, he shall return all cash
payments made to him pending resolution by arbitration, with interest thereon at
the prime rate as published in the Wall Street Journal from time to time if it
is determined in arbitration that Executive's voluntary termination of
employment was not taken in good faith and not in the reasonable belief that
grounds existed for his voluntary termination.
9. POST-TERMINATION OBLIGATIONS.
(a) All payments and benefits to Executive under this Agreement shall
be subject to Executive's compliance with paragraph (b) of this Section 9 during
the term of this Agreement and for one (1) full year after the expiration or
termination hereof.
(b) Executive shall, upon reasonable notice, furnish such information
and assistance to the Bank as may reasonably be required by the Bank in
connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become, a party.
(c) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Bank and affiliates
thereof, as it may exist from time to time, is a valuable, special and unique
asset of the business of the Bank. Executive will not, during or after the term
of his employment, disclose any knowledge of the past, present,
7
planned or considered business activities of the Bank or affiliates thereof to
any person, firm, corporation, or other entity for any reason or purpose
whatsoever (except for such disclosure as may be required to be provided to the
Office of Thrift Supervision ("OTS"), the Federal Deposit Insurance Corporation
(the "FDIC"), or other federal banking agency with jurisdiction over the Bank or
Executive). Notwithstanding the foregoing, Executive may disclose any knowledge
of banking, financial and/or economic principles, concepts or ideas which are
not solely and exclusively derived from the business plans and activities of the
Bank, and Executive may disclose any information regarding the Bank or the
Company which is otherwise publicly available. In the event of a breach or
threatened breach by the Executive of the provisions of this Section 9, the Bank
will be entitled to an injunction restraining Executive from disclosing, in
whole or in part, the knowledge of the past, present, planned or considered
business activities of the Bank or affiliates thereof, or from rendering any
services to any person, firm, corporation, other entity to whom such knowledge,
in whole or in part, has been disclosed or is threatened to be disclosed.
Nothing herein will be construed as prohibiting the Bank from pursuing any other
remedies available to the Bank for such breach or threatened breach, including
the recovery of damages from Executive.
10. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Bank. The Company, however, guarantees
payment and provision of all amounts and benefits due hereunder to 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
Company.
11. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior employment agreement between the Bank or any
predecessor of the Bank and 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 Executive is subject to receiving fewer benefits than
those available to him without reference to this Agreement.
12. 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,
Executive and the Bank and their respective successors and assigns.
8
13. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto. Notwithstanding the
foregoing, in the event that the Board of Directors of either the Bank or the
Company determines, after a review of Section 409A of the Code and all
applicable Internal Revenue Service guidance, that this Agreement should be
amended to comply with Section 409A of the Code then the Board of Directors of
either the Bank or the Company may amend this Agreement to make any changes
required to comply with Section 409A of the Code.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be 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 as to any act other than that specifically
waived.
14. REQUIRED REGULATORY PROVISIONS.
(a) The Bank's Board of Directors may terminate the Executive's
employment at any time, but any termination by the Bank's Board of Directors,
other than Termination for Cause, shall not prejudice Executive's right to
compensation or other benefits under this Agreement. Executive shall not have
the right to receive compensation or other benefits for any period after
Termination for Cause as defined in Section 7 hereinabove.
(b) If the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Bank's affairs by a notice
served under Section 8(e)(3) (12 U.S.C. ss.ss. 1818(e)(3)) or 8(g) (12 U.S.C.
ss. 1818(g)) of the Federal Deposit Insurance Act (the "FDI Act"), as amended by
the Financial Institutions Reform, Recovery and Enforcement Act of 1989, the
Bank's obligations under this contract shall be suspended as of the date of
service, unless stayed by appropriate proceedings. If the charges in the notice
are dismissed, the Bank may in its discretion (i) pay the Executive all or part
of the compensation withheld while their contract obligations were suspended and
(ii) reinstate (in whole or in part) any of the obligations which were
suspended.
(c) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e) (12 U.S.C. ss.ss. 1818(e)) or 8(g) (12 U.S.C. ss. 1818(g)) of the
FDI Act, as amended by the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, all obligations of the Bank under this contract shall
terminate as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.
(d) If the Bank is in default as defined in Section 3(x) (12 U.S.C. ss.
1813(x)(1)) of the Federal Deposit Insurance Act, as amended by the Financial
Institutions Reform, Recovery and Enforcement Act of 1989, all obligations of
the Bank under this contract shall terminate as of the date of default, but this
paragraph shall not affect any vested rights of the contracting parties.
9
(e) All obligations of the Bank under this contract shall be
terminated, except to the extent determined that continuation of the contract is
necessary for the continued operation of the institution, (i) by the Director,
at the time FDIC or the Resolution Trust Corporation enters into an agreement to
provide assistance to or on behalf of the Bank; or (ii) by the OTS at the time
the OTS or its District Director approves a supervisory merger to resolve
problems related to the operations of the Bank or when the Bank is determined by
the OTS or FDIC 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.
(f) Any payments made to Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with 12 USC
Section 1828(k) and any regulations promulgated thereunder.
15. 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.
16. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
17. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Ohio but
only to the extent not superseded by federal law.
18. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators sitting in a location selected by the employee within the
Cleveland metropolitan area, 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
Executive shall be entitled to seek specific performance of his right to be paid
until the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
19. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Bank,
10
provided that the dispute or interpretation has been settled by Executive and
the Bank or resolved in the Executive's favor.
20. INDEMNIFICATION.
The Bank and the Company shall provide Executive (including his heirs,
executors and administrators) with coverage under a standard directors' and
officers' liability insurance policy at its expense, and shall indemnify
Executive (and his heirs, executors and administrators) to the fullest extent
permitted under federal law against all expenses and liabilities reasonably
incurred by him in connection with or arising out of any action, suit or
proceeding in which he may be involved by reason of his having been a director
or officer of the Bank or the Company (whether or not he continues to be a
director or officer at the time of incurring such expenses or liabilities), such
expenses and liabilities to include, but not be limited to, judgments, court
costs and attorneys' fees and the cost of reasonable settlements (such
settlements must be approved by the Board of Directors of the Bank or the
Company, as appropriate), provided, however, neither the Bank nor Company shall
be required to indemnify or reimburse the Executive for legal expenses or
liabilities incurred in connection with an action, suit or proceeding arising
from any illegal or fraudulent act committed by the Executive.
21. SUCCESSOR TO THE BANK.
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 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.
[Signature page follows]
11
SIGNATURES
IN WITNESS WHEREOF, the Bank and the Company have caused this Agreement
to be executed and their seals to be affixed hereunto by their duly authorized
officers, and Executive has signed this Agreement, on the day and date first
above written.
ATTEST: WAYNE SAVINGS COMMUNITY BANK
By:
- --------------------------------- -------------------------------------
President and Chief Executive Officer
WITNESS: EXECUTIVE:
By:
- --------------------------------- -------------------------------------
H. Stewart Fitz Gibbon III
CONSENT OF GUARANTOR (PURSUANT
TO SECTION TEN HEREOF)
WAYNE SAVINGS BANCSHARES, INC.
By:
--------------------------------------------
President and Chief Executive Officer
12