CMSB (MM)

 

 

UNITED STATES

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) October 6, 2014

 

 

CMS Bancorp Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware		001-33322		20-8137247
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

 

123 Main Street, Suite 750 White Plains, New York		10601
(Address of principal executive offices)		(Zip Code)

Registrant’s telephone number, including area code: (914) 422-2700

 

(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:

 

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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

x

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

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Item 5.02

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

On October 6, 2014, the Board of Directors of CMS Bancorp, Inc. (the “Company”) appointed Mr. Michael Volpe, age 68, to the position of Senior Vice President and Chief Financial Officer (“CFO”) with the Company and the Company’s banking subsidiary, CMS Bank. Prior to Mr. Volpe’s appointment as CFO, he served in an advisory role to the Company following the unexpected passing of the Company’s former CFO, Stephen E. Dowd, on August 13, 2014. Mr. Volpe’s term of office as CFO is effective October 6, 2014 and is expected to continue indefinitely through the anticipated closing of the Company’s previously announced merger with Putnam County Savings Bank (“Merger”).

Mr. Volpe has significant experience in senior financial management roles with experience in accounting, auditing, budgeting, tax, payroll, accounts payable, corporate insurance and benefit administration. Prior to his advisory work for the Company and appointment as CFO, Mr. Volpe served from November 2008 - February 2013 as Executive Vice President, Chief Financial Officer, and Corporate Secretary to Global Bank, a community bank in the New York area. Prior to joining Global Bank, Mr. Volpe served from 1981-2006 in various positions with Israel Discount Bank of New York culminating with the position of Executive Vice President and Chief Financial Officer.

In connection with Mr. Volpe’s appointment as CFO, the Company entered in a letter agreement with Mr. Volpe outlining the following terms of Mr. Volpe’s at-will employment with the Company and CMS Bank:

 

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Annual salary compensation of $165,000;

 

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Eligibility for an annual discretionary performance bonus that will be prorated for the remainder of the 2014 calendar year, and is subject to the Compensation Committee’s sole discretion and approval;

 

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Eligibility for a severance payment of up to a maximum total of six months’ salary, in the event Mr. Volpe’s employment is terminated (other than for cause) at the effective time of the Merger, or within six months following the Merger. The severance payment is also subject to other terms and conditions that may be set forth in a separate release-of-claims agreement with Putnam County Savings Bank; and

 

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Eligibility to participate in the health insurance, 401(k) and all other employee benefit plans made available to other employees of the Company and CMS Bank in accordance with the Company’s Human Resources Policy.

Mr. Volpe is not engaged in any transactions with the Company or CMS Bank that are reportable under Item 404(a) of Regulation S-K.

 

Item 8.01

Other Events.

The information set forth in Item 5.02 hereof is incorporated herein by reference.

Caution about Forward-Looking and other Statements

This announcement may contain “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements are statements that include projections, predictions, expectations, or beliefs about future events, such as statements about the anticipated closing date of the transactions discussed herein. Although we believe that forward-looking statements are based upon reasonable assumptions, there can be no assurance that actual results, performance or achievements of the Company will not differ materially from any results expressed or implied by such forward-looking statements or that the Company will be able to close on the transactions by the anticipated closing date. Such forward-looking statements are subject to risks and uncertainties

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that could cause actual events or results to differ materially from those described in the forward-looking statements and include, but are not limited to, the risk that regulatory approvals or non-objections and Shareholder Approval will not be obtained and those risks described in the cautionary language included under the headings “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in the Company’s Annual Report on Form 10-K for the fiscal year ended September 30, 2013 and quarterly reports on Form 10-Q for the quarters ended December 31, 2013, March 31, 2014, and June 30, 2014.

Important Additional Information

Proxy Statement

In connection with the Merger announced by the Company in a Form 8-K filed with the U.S. Securities and Exchange Commission (“SEC”) on September 25, 2014, the Company will file a proxy statement with the SEC to be distributed to the shareholders of the Company. Shareholders are urged to read the proxy statement regarding the proposed transaction when it becomes available and any other relevant documents filed with the SEC, as well as any amendments or supplements to those documents, because they will contain important information. Shareholders will be able to obtain a free copy of the proxy statement, as well as other filings containing information about the Company and Putnam free of charge from the SEC’s website (www.sec.gov) or by contacting the Company, Attention: John E. Ritacco, President and CEO, by telephone at (914) 422-2700.

Participants in the Solicitation

The Company and its directors, executive officers, and certain other members of management and employees may be soliciting proxies from the Company’s shareholders in favor of the transaction. Information regarding the persons who may, under the rules of the SEC, may be considered participants in the solicitation of the Company’s shareholders in connection with the proposed transaction will be set forth in the proxy statement when it is filed with the SEC. You can find information about the Company’s other executive officers and directors in its most recent proxy statement filed with the SEC, which is available at the SEC’s website (www.sec.gov). You can also obtain free copies of these documents from the Company using the contact information above.

 

Item 9.01

Financial Statements, Pro Forma Financial Information and Exhibits.

 

(d)

Exhibits.

 

10.1	Employment Offer Letter effective October 6, 2014

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SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

						CMS Bancorp Inc.
						(Registrant)
October 7, 2014						/s/    JOHN E. RITACCO
(Date)						John E. Ritacco
						President and Chief Executive Officer

Exhibit 10.1

 

October 3, 2014

Mr. Michael A. Volpe

17 Apple Tree Court

Marlboro, NJ 07746

Dear Mr. Volpe:

On behalf of CMS Bank (the “Bank”), I am pleased to confirm our employment offer to you under the following terms and conditions:

Title and Reporting Relationship

Your title will be Senior Vice President and Chief Financial Officer. You will report directly to me as President and Chief Executive Officer.

Role and Responsibilities

As the Chief Financial Officer, your primary responsibilities include:

 

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Responsibilities set forth in the job description provided in Appendix 1 (see attached); and

 

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Serving as liaison to Putnam County Savings Bank with respect to conversion matters to facilitate the anticipated merger between CMS Bancorp, Inc., the Bank and Putnam County Savings Bank (“Merger”), as announced on September 25, 2014.

Term

Subject to the satisfaction of the conditions set forth in the Conditions of Offer section below, your employment will begin on October 6, 2014 (“Start Date”). You will be an “at-will” employee of the Bank. See the Employment-At-Will section below for additional information.

Compensation and Benefits

Your compensation will be an annual salary of $165,000, payable in weekly installments. Should you decide to accept this conditional employment offer:

 

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You will be eligible for an annual discretionary performance bonus (“Performance Bonus”) that will be prorated for the remainder of the 2014 calendar year, and is subject to the Compensation Committee’s sole discretion and approval. The Performance Bonus is contingent upon your continued employment with the Bank through the date of the Performance Bonus payout.

 

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You will also be eligible for a severance payment of one month’s salary for each month of completed work, up to a maximum total of six months’ salary, in the event your employment is terminated (other than for cause) at the effective time of the Merger, or within six months following the Merger. The term “for cause” shall have the same meaning as such term is

 

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used in Section 7.5.4 of the Merger Agreement dated September 25, 2014 by and between Putnam County Savings Bank, Putnam County Acquisition Corporation, CMS Bancorp, Inc. and CMS Bank (an excerpt of which is provided for your reference in Appendix 2). The severance payment is also subject to other terms and conditions that may be set forth in a separate release-of-claims agreement with Putnam County Savings Bank that you will have an opportunity to review and sign.

 

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As an employee of the Bank, you will also be eligible to participate in the health insurance, 401(k) and all other employee benefit plans made available to other employees of the Bank in accordance with the Bank’s Human Resources Policy. The Bank, in its sole discretion, has the right to amend or terminate any benefit plan or program, or your participation therein, at any time and without prior notice.

Employment-At-Will

This offer letter should not be construed as a guarantee of employment for a specific period of time. Should you accept our offer, you will be an employee-at-will, which means that either you or the Bank may terminate your employment, at any time, with or without cause and with or without notice. Please further understand that no employee or representative of the Bank has the authority to make any promises, commitment or statement of any kind that changes that status unless it is contained in a written document signed by the Bank’s CEO.

Conditions of Offer

You hereby represent and warrant to the Bank that you are not subject to any non-solicitation, noncompetition, confidentiality or any other agreement which might affect or limit your employment with the Bank.

In addition to successfully completing the steps of the Bank’s standard hiring practices and agreeing to abide by the Bank’s policies and procedures, this offer of employment with the Bank is contingent upon the following actions to be completed by you:

 

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Signing and returning this offer letter;

 

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Passing a pre-employment drug test; and

 

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Successfully completing a background and credit check with results acceptable to the Bank.

*        *        *

To accept this employment offer subject to the terms and conditions stated herein, please sign and date this letter in the space provided below. This letter sets forth the terms of your employment with the Bank and supersedes any prior representations or agreements including, but not limited to, any representations made during your recruitment, interviews or pre-employment negotiations, whether written or oral.

[signature page follows]

 

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We look forward to your favorable reply and to working with you at CMS Bank. If you have any questions, please give me a call at (914) 422-2710.

Sincerely,

 

John E. Ritacco

President & CEO

CMS Bank

I accept the offer of employment subject to the terms and conditions set forth above:

 

Michael A. Volpe
Date:		10/6/2014

 

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Appendix 1

Chief Financial Officer

Position Responsibilities

(see attached)

 

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Appendix 2

Excerpt of Section 7.5.4 of the Merger Agreement dated

September 25, 2014 by and between Putnam County

Savings Bank, Putnam County Acquisition Corporation,

CMS Bancorp, Inc. and CMS Bank

(subject to any amendments that may be agreed to by the parties)

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7.5.4 Any employee of CMS Bancorp or a CMS Bancorp Subsidiary who is not a party to an employment, change in control or severance agreement or other separation agreement that provides a benefit on termination of employment, whose employment is terminated involuntarily (other than for cause) at the Effective Time of the Bank Merger or within six (6) months following the Effective Time of the Bank Merger shall receive a lump sum severance payment from Putnam equal to two week’s base salary or base rate of pay at the rate then in effect, for each full year of employment, beginning with the original hire date and ending on the date of termination of employment, with CMS Bancorp or a CMS Bancorp Subsidiary, subject to a minimum of four weeks and a maximum of 26 weeks, provided, however that such employee enters into a release of claims against Putnam and its affiliates in a customary form reasonably satisfactory to Putnam. A “for cause” termination shall mean any termination of employment due to the occurrence of one or more of the following events: (A) the Continuing Employee’s failure of willful refusal to comply in any material respect with lawful Putnam’s (or any applicable Subsidiary’s) employment policies or directives, (B) the Continuing Employee’s commission of misconduct or an act of fraud, theft or embezzlement against Putnam (or any applicable Subsidiary), (C) the Continuing Employee’s conviction or plea of nolo contendere to any felony or crime involving moral turpitude, or (D) the Continuing Employee’s failure to substantially perform the duties and responsibilities of such Continuing Employee’s position. The estimated amounts payable under the CMS Bancorp Severance Plan are set forth in the CMS Bancorp Benefits Schedule.

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Job Description:

SVP/Chief Financial Officer

Grade E

 

Department:		Executive
Reports to:		Chief Executive Officer (President)
Supervises:		All aspects of the Company’s Accounting Function
Summary:		Directs auditing, recordkeeping and accounting activities of the financial institution. The CFO position makes recommendations relating to budget preparation, risk management, profit forecasts and operational changes, responsible for GAAP and regulatory reporting. The position works with the Asset and Liability Management (ALM) consultant as well as to develop the Bank’s investment strategy and make investment recommendations to the ALM Committee.

Job Requirements:

 

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Certified Public Accountant, master’s degree in business administration (MBA), finance or related field (Preferred)

 

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Minimum 3-5 years of public company experience in a senior financial position, with extensive administrative experience in financial institutions.

 

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Proven background in financial institution accounting and auditing, operations, and policies and procedures related to procurement.

 

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High-level analytical and communication skills.

 

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Ability to manage a group of highly trained personnel.

Specific Job Functions:

 

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Prepares the Company’s 10K & 10Q as well as 8K and Form 4 Reports.

 

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Prepares the Company’s Call Regulatory Report

 

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Oversees and maintains XBRL reporting requirements

 

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Works with the Company’s attorney on public filing matters

 

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Develops financial and tax strategies

 

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A member of ALM-Participates in determining deposit and loan rates.

 

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Prepares the monthly reconciliation of the Bank’s Investment Portfolio and provides guidance regarding investment decisions.

 

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Serves as trustee of the Bank’s retirement benefit plans.

 

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Assists with lease negotiation and major purchasing decisions.

 

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Provides direction for planning model runs; reviews and approves office property improvement requests.

 

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Assists in analysis of new branch site locations and closings of existing branches.

 

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Develops and implements financial institution fiscal plans and policies.

 

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Interacts with the Internal and External Auditors

 

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Interacts with external auditors on Sarbanes Oxley audits

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Handles the Bank’s Vendor Management Program

 

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Handles Information Technology needs of the Company