SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 1, 2009
FSB Community Bankshares, Inc.
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(Exact name of registrant as specified in its charter)
United States 000-52751 74-3164710
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(State or other jurisdiction (Commission File No.) (IRS Employer
of incorporation) Identification No.)
45 South Main Street, Fairport, New York 14450
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (585) 223-9080
Not Applicable
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(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CRF 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
Effective March 1, 2009, Fairport Savings Bank, the wholly owned subsidiary of
FSB Community Bankshares, Inc., entered into an employment agreement with Dana
Gavenda, President and Chief Executive Officer. The agreement replaces the
Amended and Restated Employment Agreement between the Bank and Mr. Gavenda that
was effective as of March 1, 2006. The agreement has an initial term of three
years.
Under the terms of the agreement, Mr. Gavenda's base salary is $163,000 per
year. The base salary shall be reviewed at least annually and may be increased,
but not decreased. In addition to the base salary, the agreement provides for,
among other things, participation in bonus programs and other employee pension
benefit and fringe benefit plans applicable to executive employees and use of an
automobile. If the Bank is required to prepare an accounting restatement due to
material noncompliance of the Bank with any financial reporting requirement
under the securities laws, Mr. Gavenda will reimburse the Bank for (1) any bonus
or other incentive-based or equity-based compensation received during the
12-month period following the first public issuance or filing with the
Securities and Exchange Commission of the financial document embodying such
financial reporting requirement and (2) any profits realized from the sale of
FSB Community Bankshares, Inc. securities during that 12-month period.
The agreement provides that Mr. Gavenda's employment may be terminated for cause
at any time, in which event Mr. Gavenda would have no right to receive
compensation or other benefits for any period after termination. In addition,
Mr. Gavenda is not entitled to any additional benefits under the employment
agreement upon retirement at age 65. Should Mr. Gavenda become disabled, he
would receive proceeds from a supplemental senior executive disability insurance
policy, where the Bank pays the premiums for such insurance policy, and the Bank
would continue life and health care coverage for Mr. Gavenda through the period
of the disability insurance coverage. In the event Mr. Gavenda dies while
employed by the Bank, his estate will be paid Mr. Gavenda's base salary for one
year and his spouse will be entitled to continuation of medical, dental and
other insurance benefits for one year after his death.
Mr. Gavenda is entitled to severance payments and benefits in the event of the
termination of his employment under specified circumstances. In the event Mr.
Gavenda's employment is terminated for reasons other than for cause, disability,
death or retirement, or in the event Mr. Gavenda resigns within 30 days
following (1) the failure to elect or reelect or to appoint or reappoint Mr.
Gavenda as President and Chief Executive Officer of the Bank, (2) a material
change in Mr. Gavenda's functions, duties, or responsibilities, which change
would cause his position to become one of lesser responsibility, importance or
scope, (3) the relocation of Mr. Gavenda's principal place of employment to a
location that is more than 30 miles from the location as of March 1, 2009, (4) a
material reduction in benefits and perquisites including base salary (except for
any bank-wide or officer-wide reduction), or (5) a material breach of the
employment agreement by the Bank, Mr. Gavenda would be entitled to a severance
payment. The severance payment is equal to the sum of (i) the highest annual
rate of base salary paid at any time under the agreement, and (ii) the greater
of (x) the average annual cash bonus paid with respect to the one year prior to
the termination or (y) the cash bonus paid with respect to the fiscal year ended
prior to the termination; provided that if the Bank is not in compliance with
its minimum capital requirements or if the payments would cause the Bank's
capital to be reduced below its minimum capital requirements, the payment shall
be deferred until such time as the Bank is in capital compliance. In addition,
Mr. Gavenda would be entitled, at the Bank's sole expense, to the continuation
of life insurance coverage and non-taxable medical and dental coverage as part
of his severance benefits for 12 months.
In the event of termination of employment after a change-in-control, Mr. Gavenda
is generally entitled to a change-in-control payment equal to three times the
sum of (i) the highest annual rate of base salary paid at any time under the
agreement, and (ii) the greater of (x) the average annual cash bonus paid with
respect to the three completed fiscal years prior to the termination or (y) the
cash bonus paid with respect to the fiscal year ended prior to the termination;
provided that if the Bank is not in compliance with its minimum capital
requirements or if the payments would cause the Bank's capital to be reduced
below its minimum capital requirements, the payment shall be deferred until such
time as the Bank is in capital compliance; and provided that total severance
compensation from all sources shall not exceed three times Mr. Gavenda's average
annual compensation over the five fiscal years before the fiscal year in which
the termination of employment occurs.
However, if the change in control occurs after Mr. Gavenda has attained age 62
or after implementation of a Board-approved stock-based benefit plan, the amount
that Mr. Gavenda will receive is equal to the sum of (i) the highest annual rate
of base salary paid at any time under the agreement, and (ii) the greater of (x)
the average annual cash bonus paid with respect to the one year prior to the
termination or (y) the cash bonus paid with respect to the fiscal year ended
prior to the termination; provided that if the Bank is not in compliance with
its minimum capital requirements or if the payments would cause the Bank's
capital to be reduced below its minimum capital requirements, the payment shall
be deferred until such time as the Bank is in capital compliance.
If Mr. Gavenda's employment is terminated following a change in control, he
would also receive, at the Bank's expense, continuation of life insurance
coverage and non-taxable medical and dental coverage following the termination
of his employment for 12 months.
Upon termination of Mr. Gavenda's employment other than in connection with a
change in control, Mr. Gavenda agrees not to compete with the Bank for two years
following termination of employment (one year if such termination is after a
change in control) within and shall not directly or indirectly engage in any
business or activity in competition with the Bank or be a director, officer or
employee or consultant to any bank, savings bank, savings association or credit
union, operating in Monroe County, if such entity has assets of less than $1.0
billion.
The agreement also provides for an automatic reduction in the amount of any
payments made in connection with a change-in-control that would otherwise
constitute "excess parachute payments" under Section 280G of the Internal
Revenue Code. The total payment owed to Mr. Gavenda upon a change-in-control
will be reduced to an amount that is $1.00 less than the amount that would
otherwise be an "excess parachute payment" under Code Section 280G.
The employment agreement for Mr. Gavenda is attached as Exhibit 10.1 to this
Current Report on Form 8-K. The above description of the agreement is qualified
by reference to the agreement itself.
Item 9.01. Financial Statements and Exhibits.
(a) Financial Statements of Businesses Acquired: None
(b) Pro Forma Financial Information: None
(c) Shell company transactions: None
(d) Exhibits:
Exhibit 10.1: Employment Agreement for Dana Gavenda
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, hereunto duly authorized.
FSB COMMUNITY BANKSHARES, INC.
DATE: April 6, 2009 By: /s/ Kevin D. Maroney
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Kevin D. Maroney
Chief Financial Officer