EMPLOYMENT AGREEMENT TERRY A. PETERSONEmployee Retention Agreement |
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EMPLOYMENT AGREEMENT
TERRY A. PETERSON
THIS
EMPLOYMENT AGREEMENT (Agreement) is dated as of the 19 day of June,
2008, by and between WSB FINANCIAL GROUP, INC. and WESTSOUND BANK (hereinafter
jointly referred to as Westsound) and TERRY A. PETERSON (Executive) and is
effective retroactively to April 15, 2008. Westsound and Executive are
sometimes collectively referred to herein as the Parties.
RECITALS
WHEREAS,
Executive has been recruited to serve as the new President and Chief Executive
Officer of Westsound substantially under the terms of the Term Sheet dated
March 2008; and
WHEREAS,
the Parties now wish to enter into a definitive agreement setting forth the
terms and conditions of Executives employment with Westsound;
NOW
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Parties agree as follows:
1. Term
of Employment. Subject to earlier termination of Executives employment
pursuant to paragraphs 8 and 9, Westsound hereby employs Executive, and
Executive hereby accepts such employment, for the period commencing on
April 15, 2008 (the Effective Date) and ending April 30, 2011 (the
Term of Employment); provided, however, that the Term of Employment shall be
automatically extended for an additional year on the first anniversary of the
Effective Date and on each anniversary of the Effective Date thereafter, unless
written notice of non-extension is provided by either party to the other party
at least one hundred twenty (120) days prior to the applicable succeeding
anniversary date.
2. Duties.
Executive is engaged as President and Chief Executive Officer of Westsound Bank
and WSB Financial Group, Inc., and is responsible for the overall operation and
conduct of Westsounds business, in accordance with the laws of the State of
Washington and the federal government and pursuant to the general guidelines
and directions as established from time to time by the Board of Directors of
Westsound (the Board). As long as Executive serves as President and CEO of
Westsound Bank and WSB Financial Group, Inc., he shall be nominated to serve as
a member of the Board of Directors of Westsound Bank and WSB Financial Group,
Inc.
3.
Exclusive Services and Best Efforts. Executive shall render services solely
on behalf of Westsound, and in no event shall he render services directly to a
customer of Westsound for the individual gain of Executive, without Westsounds
prior written consent. Executive shall devote his full time, attention and
energies, during regular business hours, to the business of Westsound.
Executive further agrees that he shall perform any and all duties to the
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best of his abilities. In
addition to any other responsibilities which Westsound may from time to time
require him to perform, Executive shall:
(a) Use
his diligent efforts to promote the business and further the goals of
Westsound;
(b) Conduct
his business so as to maintain and increase the goodwill and reputation of
Westsound and its business;
(c) Comply
with all codes of ethics, personnel and other policies of Westsound, federal,
state and local laws and regulations, including but not limited to those
related to banking and securities, and the rules of the NASDAQ Stock Market
(NASDAQ);
(d) Not
render to others, during his employment with Westsound, services of any kind or
promote, participate or engage in any other business activity which would
interfere with the performance of his duties under this Agreement, including,
without limitation, providing consulting services or otherwise engaging in
business with any person or entity which directly or indirectly competes with
Westsound, unless he first obtains Westsounds prior written consent to engage
in such outside activities.
Anything
herein to the contrary notwithstanding, nothing shall preclude the Executive
from (i) serving on the boards of directors of a reasonable number of
other corporations or the boards of a reasonable number of trade associations
and/or charitable organizations (subject to the reasonable approval of the
Board), (ii) engaging in charitable activities and community affairs, and
(iii) managing Executives personal investments and affairs, provided that
such activities do not materially interfere with the proper performance of Executives
duties and responsibilities as an executive officer of Westsound.
4. Compensation.
Westsound shall pay Executive, as compensation for his full-time services
during the Term of Employment, the following:
(a)
Base Salary. Executive shall receive a base salary of $300,000 per annum
(Base Salary), partial years prorated, payable in substantially equal
periodic payments, which shall be made no less frequently than monthly during
the period of the Executives employment hereunder. Executives Base Salary
shall be reviewed and set annually by the Compensation Committee.
Notwithstanding anything to the contrary in this paragraph 4(a), Executives
Base Salary shall be at least $300,000 per annum during the term of this
Agreement.
(b)
Bonus; Incentives. Executive shall receive an annual discretionary bonus
or cash incentives based on an incentive pay plan established from time to time
by the Compensation Committee with the approval of the Board of Directors
(Bonus). In determining the amount of the Bonus, if any, the Compensation
Committee shall consider earnings, asset quality, factors affecting shareholder
value and such other factors as the Compensation Committee shall deem
appropriate. Any discretionary bonus shall be paid not later than 2 1/2 months
after the year in which the Executive obtains a legally binding right to the
bonus. If the
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discretionary bonus cannot be
paid by that date, then it shall be paid on the next following April 15,
or such other date during the year as permitted under Section 409A.
(c)
Benefit Plans. During the Term of Employment, Executive shall be
entitled to participate in any and all employee benefit plans, including, but
not be limited to the Westsound Bank 401(k) Plan, the WSB Financial Group,
Inc. 1999 Stock Option Plan, and employee welfare and health benefit plans
which may be established by Westsound from time to time for the benefit of all
executives of Westsound. Executive shall be required to comply with the
conditions attendant to coverage by such plans and shall comply with and be
entitled to benefits only in accordance with the terms and conditions of such
plans as they may be amended from time to time.
(d)
Vacations; Leave. The Executive shall be entitled to (i) an annual
paid vacation of not less than four (4) weeks (20 business days) per year
and otherwise in accordance with the policies established by the Board for
executive officers, and (ii) voluntary leaves of absences, with or without
pay, from time to time at such times and upon such conditions as the Board may
determine.
5. Business
Expenses. Westsound will pay or reimburse Executive for reasonable and
necessary business expenses incurred by Executive, which are directly related
to the performance of his duties of employment, including travel, professional
memberships and professional development, subject to documentation by Executive
and approval of the Chairman of the Audit Committee. Westsound will pay
Executives dues to such clubs as the Board deems appropriate and beneficial to
Westsound.
6. Automobile.
Executive shall provide his own automobile, and Westsound shall provide him an
automobile allowance of $600 per month for use of such automobile incident to
his duties as President and Chief Executive Officer of Westsound. The
automobile allowance may be increased from time to time as deemed appropriate
by the Board.
7. Working
Facilities. Executive shall be furnished with such working facilities as
are reasonably required by Executive to perform his duties as President and
Chief Executive Officer of Westsound, which working facilities shall include,
but not be limited to, an office and secretarial and staff support.
8. Separation
From Service. Notwithstanding paragraph 1, this Agreement may be terminated
by Westsound upon written notice to Executive, and by Executive upon ninety (90) days
written notice to Westsound. If Executive resigns from Westsound, he will
receive only his compensation, benefits earned and expenses reimbursable
through the date this Agreement is terminated. If Executives employment is
terminated by Westsound, he shall receive the compensation provided hereafter.
(a)
Termination Without Cause. If Executive is involuntarily separated from
service by Westsound, except for cause as provided in paragraph 8(b), subject
to paragraphs 24 and 25, Executive shall receive as a severance benefit a
severance payment equal to six (6) months W-2 income before salary
deferrals and excluding gains, if any, from exercise of stock
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options, which amount shall
be increased by one (1) months W-2 income for each month of employment
after six (6) months up to a maximum of twelve (12) months. Such
payment shall be subject to applicable payroll withholding, and payable in a
lump sum immediately following termination, provided the timing of any such
payment shall be made in compliance with Section 409A of the Internal Revenue
Code of 1986, as amended (Code).
(b)
Termination for Cause. The compensation payable upon separation from
service, as provided in paragraph 8(a), shall not be payable in the event that
the Executive is involuntarily separated from service for cause. Involuntary
separation from service shall be determined to be for cause only in the event:
(i) Executive is convicted of a felony or crime involving moral turpitude,
or charged with a felony or crime involving moral turpitude if the Board, in
its sole discretion, determines that the adverse publicity/notoriety stemming
from such charge will make it difficult for Executive to perform his duties
and/or Westsound to carry on its normal business activities;
(ii) Executive fails or refuses, after written request, to comply with any
material policies adopted by the Board; (iii) Executive is terminated for
fraud, embezzlement, or willful misconduct (including, but not limited to,
violation of Westsounds anti-discrimination and harassment policies); or
(iv) Executive is removed from office by the Board in order to comply with
a requirement, request or recommendation from the Supervisor of Banking for the
State of Washington or the Federal Deposit Insurance Corporation (FDIC).
(c)
Death or Disability. This Agreement will terminate immediately upon
Executives death. If Executive is unable to perform his duties and obligations
under this Agreement as a result of a Disability and cannot continue to perform
his duties with reasonable accommodation, the Board may terminate this
Agreement. If termination occurs due to Executives death, his estate will be
entitled to receive the compensation, benefits earned, and expenses
reimbursable through the date this Agreement is terminated. If termination
occurs due to Executives Disability, he shall continue to receive his Base
Salary until payments under Westsounds long-term disability insurance plan
commence, or in the event Westsound has no long-term disability insurance plan
on the date of disability, Executives Base Salary shall continue for a period
of six (6) months.
9. Change
of Control. Notwithstanding paragraph 1, if after a Change of Control, (i)
Executive is involuntarily separated from service, except for cause pursuant to
paragraph 8(b), or (ii) Executive voluntarily separates from service for
Good Reason within twelve (12) months after such Change of Control,
subject to paragraphs 24 and 25, Executive shall receive an amount equal to two
(2) times his Base Salary plus Bonus before salary deferrals over the
twelve (12) month period prior to the Change of Control, reduced by any amount
received under paragraph 8(a), payable in a lump sum within 30 days of the
Executives separation from service, subject to applicable payroll withholding;
provided, however, that if Executive is a Specified Employee as of the date
Executives employment terminated, then any amounts that are not considered
separation pay under Code Section 409A will be paid to Executive not
sooner than the first day of the seventh calendar month following the
termination of Executives employment and not later than the 30th day of such
calendar month. No payment shall be made under this Section 9 of amounts
that would be considered deferred compensation under Code Section 409A
unless the Executives separation from service qualifies as such under Code
Section 409A and
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the regulations thereunder,
taking into account all rules and presumptions provided for thereunder.
10. Certain
Definitions.
Change
of Control shall mean (i) a change in the ownership of Westsound;
(ii) a change in the effective control of Westsound; or (iii) a
change in ownership of a substantial portion of the assets of Westsound, within
the meaning of the regulations promulgated by the Internal Revenue Service
under section 409A of the Code.
Disability
shall mean (i) Executive is unable to engage in any substantial gainful
activity by reason of any medically determinable, physical or mental impairment
that can be expected to result in death or can be expected to last for a
continuous period of not less than twelve months, or (ii) he is, by reason
of any medically determinable physical or mental impairment that can be
expected to result in death or can be expected to last for a continuous period
of not less than twelve months, receiving income replacement benefits for a
period of not less than three months under an accident and health plan covering
employees of Westsound. Further, Executive will be deemed disabled if
determined to be totally disabled by the U.S. Social Security Administration or
in accordance with a disability insurance plan if the definition of disability
applied under such disability insurance plan complies with the requirements of
the foregoing clause (i) or clause (ii).
Good
Reason means the occurrence of one or more of the following conditions arising
without the consent of Executive:
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(i) |
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A material
diminution in his Base Salary. |
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(ii) |
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A material
diminution in his authority, duties, or responsibilities, including, but not
limited to the failure of the Boards of Directors of WSB Financial Group,
Inc. or Westsound Bank not to elect him President and Chief Executive
Officer. |
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(iii) |
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A material
diminution in the authority, duties, or responsibilities of the supervisor to
whom Executive is required to report, including a requirement that Executive
report to a corporate officer or employee instead of reporting directly to
the board of directors of Westsound. |
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(iv) |
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