Exhibit 10.2
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CHANGE IN CONTROL SEVERANCE AGREEMENT BETWEEN
WILLOW GROVE BANK AND XXXXXXX XXXXXXX
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT is dated as of
January 18, 2006 and is between Willow Grove Bank, a federally
chartered savings bank (the "Bank" or the "Employer"), and
Xxxxxxx Xxxxxxx (the "Officer").
WITNESSETH
WHEREAS, in order to induce the Officer to be employed by
the Employer and in consideration of the Officer's agreeing to be
employed by the Employer, the parties desire to specify the
severance benefits which shall be due the Officer by the Employer
in the event that his employment with the Employer is terminated
under specified circumstances.
NOW THEREFORE, in consideration of the mutual agreements
herein contained, and upon the other terms and conditions
hereinafter provided, the parties hereby agree as follows:
1. Definitions. The following words and terms shall have
the meanings set forth below for the purposes of this Agreement:
(a) Average Annual Compensation. The Officer's "Average
Annual Compensation" for purposes of this Agreement shall be
deemed to mean the average amount of Base Salary and cash bonus
paid to the Officer by the Employer or any subsidiary thereof
during the most recent five calendar years preceding the Date of
Termination (or such shorter period as the Officer was employed).
(b) Cause. Termination of the Officer's employment for
"Cause" shall mean termination because of personal dishonesty,
incompetence, willful misconduct, 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 , willful conduct which is materially detrimental
(monetarily or otherwise) to the Employer or material breach of
any provision of this Agreement.
(c) Corporation. Corporation shall mean Willow Grove
Bancorp, Inc., the parent holding company of the Bank and any
successor thereto.
(d) Change in Control of the Corporation. "Change in
Control of the Corporation" shall mean the occurrence of any of
the following: (i) the acquisition of control of the Corporation
as defined in 12 C.F.R. 574.4, unless a presumption of control
is successfully rebutted or unless the transaction is exempted by
12 C.F.R. 574.3(c)(vii), or any successor to such sections; (ii)
an event that would be required to be reported in response to
Item 5.01 of Form 8-K or Item 6(e) of Schedule 14A of Regulation
14A pursuant to the Securities Exchange Act of 1934, as amended
("Exchange Act"), or any successor thereto, whether or not any
class of securities of the Corporation is registered under the
Exchange Act; (iii) any "person" (as such 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 Corporation representing 20% or more of the combined
voting power of the Corporation's then outstanding securities; or
(iv) during any period of three consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the
Corporation cease for any reason to constitute at least a
majority thereof unless the election, or the nomination for
election by stockholders, of each new director was approved by a
vote of at least two-thirds of the directors then still in office
who were directors at the beginning of the period.
(e) Code. "Code" shall mean the Internal Revenue Code of
1986, as amended.
(f) Date of Termination. "Date of Termination" shall mean
(i) if the Officer's employment is terminated for Cause or for
Disability, the date specified in the Notice of Termination, (ii)
if the Officer's employment is terminated due to his death, the
date of death, and (iii) if the Officer's employment is
terminated for any other reason, the date on which a Notice of
Termination is given or as specified in such Notice.
(g) Disability. Termination by the Employer of the
Officer's employment based on "Disability" shall mean termination
because of any physical or mental impairment which qualifies the
Officer for disability benefits under the applicable long-term
disability plan maintained by the Employer or any subsidiary or,
if no such plan applies, which would qualify the Officer for
disability benefits under the Federal Social Security System.
(h) Effective Date. The Effective Date of this Agreement
shall mean the date first above written.
(i) Good Reason. Termination by the Officer of the
Officer's employment for "Good Reason" shall mean termination by
the Officer within twelve (12) months following a Change in
Control of the Corporation based on:
(i) Without the Officer's express written
consent, the assignment by the Employer to the
Officer of any duties which are materially
inconsistent with the Officer's positions, duties,
responsibilities and status with the Employer
immediately prior to a Change in Control of the
Corporation, or a material change in the Officer's
reporting responsibilities, titles or offices as
an employee and as in effect immediately prior to
such a Change in Control of the Corporation, or
any removal of the Officer from or any failure to
re-elect the Officer to any of such
responsibilities, titles or offices, except in
connection with the termination of the Officer's
employment for Cause, Disability or Retirement or
as a result of the Officer's death or by the
Officer other than for Good Reason;
(ii) Without the Officer's express written
consent, a reduction by the Employer in the
Officer's base salary as in effect immediately
prior to the date of the Change in Control of the
Corporation or as the same may be increased from
time to time thereafter or a material reduction in
the package of fringe benefits provided to the
Officer;
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(iii) The principal executive office of the
Employer is relocated by more than 45 miles from
the current principal executive office of the
Employer or, without the Officer's express written
consent, the Employer requires the Officer to be
based anywhere other than an area within 45 miles
of the location of the Employer's current
principal executive office, except for required
travel on business of the Employer to an extent
substantially consistent with the Officer's
present business travel obligations;
(iv) Any purported termination by the Employer of the
Officer's employment for Disability which is not
effected pursuant to a Notice of Termination
satisfying the requirements of paragraph (j)
below; or
(v) The failure by the Employer to obtain the
assumption of and agreement to perform this
Agreement by any successor as contemplated in
Section 7 hereof.
(j) IRS. IRS shall mean the Internal Revenue Service.
(k) Notice of Termination. Any purported termination of
the Officer's employment by the Employer for any reason,
including without limitation for Cause, Disability or Retirement,
or by the Officer for any reason, including without limitation
for Good Reason, shall be communicated by written "Notice of
Termination" to the other party hereto. For purposes of this
Agreement, a "Notice of Termination" shall mean a dated notice
which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for
termination of Officer's employment under the provision so
indicated, (iii) specifies a Date of Termination, which shall be
not less than thirty (30) nor more than ninety (90) days after
such Notice of Termination is given, except in the case of the
Employer's termination of the Officer's employment for Cause,
which shall be effective immediately, and except as set forth in
Section 16(a) hereof; and (iv) is given in the manner specified
in Section 8 hereof.
(l) Retirement. "Retirement" shall mean voluntary
termination by the Officer in accordance with the Employer's
retirement policies, including early retirement, generally
applicable to their salaried employees.
2. Benefits Upon Termination.
(a) General. The Employer shall have the right, at any
time upon prior Notice of Termination, to terminate the Officer's
employment hereunder for any reason, including without limitation
termination for Cause, Disability or Retirement, and the Officer
shall have the right, upon prior Notice of Termination, to
terminate his employment hereunder for any reason.
(b) Non Change in Control Termination. In the event that
(i) the Officer's employment is terminated due to Cause, Death,
Disability, Retirement, or any other reason unrelated to a Change
in Control of the Corporation, or (ii) the officer elects to
terminate his employment for other than
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Good Reason, then the Officer shall have no right pursuant to
this Agreement to compensation or other benefits for any period
after the applicable Date of Termination.
(c) Change in Control Termination. In the event that (i)
the Officer's employment is terminated concurrently with or
within twelve (12) months following a Change in Control of the
Corporation for other than Cause, Disability, Retirement or the
Officer's death, or (ii) the Officer elects to terminate his
employment for Good Reason, then the Employer shall, subject to
the provisions of Sections 3 and 4 hereof, if applicable,
(A) pay to the Officer, in twelve (12) equal monthly
installments commencing with the first business day of the
month immediately following the Date of Termination, a cash
severance amount equal to one (1) times the Officer's
Average Annual Compensation; and
(B) maintain and provide for a period ending at the
earlier of (i) one year subsequent to the Date of
Termination or (ii) the date of the Officer's full-time
employment by another employer (provided that the Officer is
entitled under the terms of such employment to benefits
substantially similar to those described in this
subparagraph (B)), at no cost to the Officer, the Officer's
continued participation in all group insurance, life
insurance, health and accident insurance and disability
insurance in which the Officer was participating in
immediately prior to the Date of Termination, provided that
in the event that the Officer's participation in any such
insurance plan as provided in this subparagraph (B) is
barred, or during such period any such plan is discontinued
or the benefits thereunder are materially reduced, the
Employer shall either arrange to provide the Officer with
benefits substantially similar to those which the Officer
was entitled to receive under such plans immediately prior
to the Date of Termination or pay a cash equivalency amount.
3. Limitation of Benefits under Certain Circumstances. If
the payments and benefits pursuant to Section 2 hereof, either
alone or together with other payments and benefits which the
Officer has the right to receive from the Employer and its
affiliates, would constitute a "parachute payment" under Section
280G of the Code, the payments and benefits payable by the
Employer pursuant to Section 2 hereof shall be reduced, in the
manner determined by the Officer, by the amount, if any, which is
the minimum necessary to result in no portion of the payments and
benefits payable by the Employer under Section 2 being
non-deductible to the Employer pursuant to Section 280G of the
Code and subject to the excise tax imposed under Section 4999 of
the Code. The determination of any reduction in the payments and
benefits to be made pursuant to Section 2 shall be based upon the
opinion of independent counsel selected by the Employer and paid
by the Employer. Such counsel shall be reasonably acceptable to
the Employer and the Officer; shall promptly prepare the
foregoing opinion, but in no event later than thirty (30) days
from the Date of Termination; and may use such actuaries as such
counsel deems necessary or advisable for the purpose. Nothing
contained herein shall result in a reduction of any payments or
benefits to which the Officer may be entitled upon termination of
employment under any circumstances other than as specified in
this Section 3, or a reduction in the payments and benefits
specified in Section 2 below zero.
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4. Mitigation; Exclusivity of Benefits.
(a) The Officer shall not be required to mitigate the
amount of any benefits hereunder by seeking other employment or
otherwise. However, the amount of severance compensation payable
by the Employer under Section 2(c)(A) shall be reduced to the
extent the Officer earns compensation from any source for
services rendered by the Officer within one year following the
Date of Termination.
(b) The specific arrangements referred to herein are not
intended to exclude any other benefits which may be available to
the Officer upon a termination of employment with the Employer
pursuant to employee benefit plans of the Employer or otherwise.
5. Withholding. All payments required to be made by the
Employer hereunder to the Officer shall be subject to the
withholding of such amounts, if any, relating to tax and other
payroll deductions as the Employer may reasonably determine
should be withheld pursuant to any applicable law or regulation.
6. Competitive Activities
(a) The Officer agrees and acknowledges that by virtue of
his employment hereunder, she will maintain an intimate knowledge
of the activities and affairs of the Employer, including trade
secrets, plans, business plans, strategies, projections, market
studies, customer information, employee records and other
internal proprietary and confidential information and matters
(collectively "Confidential Information"). As a result, and also
because of the special, unique and extraordinary services that
the Officer is capable of performing for the Employer or one of
its competitors, the Officer recognizes that the services to be
rendered by his hereunder are of a character giving them a
peculiar value, the loss of which cannot be adequately or
reasonably compensated for by damages.
(b) Except for the purpose of carrying out his duties
hereunder, the Officer will not remove or retain, or make copies
or reproductions of, any figures, documents, records, discs,
computer records, calculations, letters, papers, or recorded or
documented information of any type or description relating to the
business of the Employer. The Officer agrees that she will not
divulge to others any information (whether or not documented or
recorded) or data acquired by his while in the Employer's employ
relating to methods, processes or other trade secrets or other
Confidential Information.
(c) The Officer agrees that the Employer is, and shall be,
the sole and exclusive owner of all improvements, ideas and
suggestions, whether or not subject to patent or trademark
protection, and all copyrightable materials which are conceived
by the Officer during his employment, which relate to the
business of the Employer, which are confidential, or which are
not readily ascertainable from persons or other sources outside
the Employer.
(d) Unless the Officer's employment is terminated in
connection with or following a Change in Control of the
Corporation, then for a period of one year after the termination
of employment, the Officer shall not, directly or indirectly,
solicit, induce, encourage or attempt to
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influence any client, customer or employee of the Employer to cease
to do business with, or to terminate any employee's employment with,
the Employer.
(e) The Employer shall be entitled to immediate injunctive
or other equitable relief to restrain the Officer from failing to
comply with any obligation under this Section 6, in addition to
any other remedies to which the Employer may be entitled under
law. The right to such injunctive or other equitable relief
shall survive the termination by the Employer of the Officer's
employment.
(f) The Officer acknowledges that the restrictions
contained in this Section 6 are reasonable and necessary to
protect the legitimate interests of the Employer and that any
violation thereof would result in irreparable injuries to the
Employer. The Officer acknowledges that, if the Officer violates
any of these restrictions, the Employer is entitled to obtain
from any court of competent jurisdiction, preliminary and
permanent injunctive relief as well as damages, and an equitable
accounting of any earnings, profits and other benefits arising
from such violation, which rights shall be cumulative and in
addition to any other rights or remedies to which the Employer
may be entitled. The Officer further acknowledges that the
provisions of Sections 6(a), (b), (c), (e) and (f) shall remain
in full force and effect beyond the termination of the Officer's
employment for any reason, including but not limited to
termination in connection with or following a Change in Control
of the Corporation.
7. Assignability. The Employer may assign this Agreement
and its rights and obligations hereunder in whole, but not in
part, to any corporation, bank or other entity with or into which
the Employer may hereafter merge or consolidate or to which the
Employer may transfer all or substantially all of its assets, if
in any such case said corporation, bank or other entity shall by
operation of law or expressly in writing assume all obligations
of the Employer hereunder as fully as if it had been originally
made a party hereto, but may not otherwise assign this Agreement
or its rights and obligations hereunder. The Officer may not
assign or transfer this Agreement or any rights or obligations
hereunder.
8. Notice. For the purposes of this Agreement, notices
and all other communications provided for in this Agreement shall
be in writing and shall be deemed to have been duly given when
delivered or mailed by first-class certified or registered mail,
return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
To the Employer: Secretary
Willow Grove Bank
Welsh & Xxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxxxx 00000-0000
To the Officer: Xxxxxxx Xxxxxxx
At his last address on file with
the Employer
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9. Amendment; Waiver. No provisions of this Agreement may
be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by
the Officer and such officer or officers as may be specifically
designated by the Board of Directors of the Employer to sign on
its behalf; provided, however, that if the Employer determines,
after a review of the final regulations issued under Section 409A
of the Code and all applicable Internal Revenue Service guidance,
that this Agreement should be further amended to avoid triggering
the tax and interest penalties imposed by Section 409A of the
Code, the Employer may amend this Agreement to the extent
necessary to avoid triggering the tax and interest penalties
imposed by Section 409A of the Code. No waiver by any party
hereto at any time of any breach by any other party hereto of, or
compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at
any prior or subsequent time.
10. Governing Law. The validity, interpretation,
construction and performance of this Agreement shall be governed
by the laws of the United States where applicable and otherwise
by the substantive laws of the Commonwealth of Pennsylvania.
11. Nature of Employment and Obligations.
(a) Nothing contained herein shall be deemed to create
other than a terminable at will employment relationship between
the Employer and the Officer, and the Employer may terminate the
Officer's employment at any time, subject to providing any
payments specified herein in accordance with the terms hereof.
(b) Nothing contained herein shall create or require the
Employer to create a trust of any kind to fund any benefits which
may be payable hereunder, and to the extent that the Officer
acquires a right to receive benefits from the Employer hereunder,
such right shall be no greater than the right of any unsecured
general creditor of the Employer.
12. Term of Agreement. The term of this Agreement shall
run from the Effective Date through and including June 30, 2007.
Prior to July 1, 2007 and each July 1 thereafter, this Agreement
shall extend for an additional year until such time as the Board
of Directors of the Employer or the Officer gives notice in
accordance with the terms of Section 8 hereof of its or his
election, respectively, not to extend the terms of this
Agreement. Such written notice of the election not to extend
must be given not less than thirty (30) days prior to any such
July 1. If any party gives timely notice that the term will not
be extended as of any July 1, then this Agreement shall terminate
at the conclusion of its remaining term. References herein to
the term of this Agreement shall refer both to the initial term
and successive terms.
13. Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
14. Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provisions of this Agreement, which
shall remain in full force and effect.
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15. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an
original but all of which together will constitute one and the
same instrument.
16. Regulatory Actions. The following provisions shall be
applicable to the parties to the extent that they are required to
be included in agreements between a savings association and its
employees pursuant to Section 563.39(b) of the Regulations
Applicable to All Savings Associations, 12 C.F.R. 563.39(b), or
any successor thereto, and shall be controlling in the event of a
conflict with any other provision of this Agreement, including
without limitation Section 2 hereof.
(a) The Bank's Board of Directors may terminate the
Officer's employment at any time, but any termination by the
Bank's Board of Directors, other than termination for Cause,
shall not prejudice the Officer's right to compensation or other
benefits under this Agreement.
(b) If the Officer is suspended from office and/or
temporarily prohibited from participating in the conduct of the
Employer's affairs by a notice served under Section 8(e)(3) or
Section 8(g)(1) of the Federal Deposit Insurance Act ("FDIA") (12
U.S.C. 1818(e)(3) and 1818(g)(1)), the Employer's obligations
under this Agreement shall be suspended as of the date of
service, unless stayed by appropriate proceedings. If the
charges in the notice are dismissed, the Employer may, in its
discretion: (i) pay the Officer all or part of the compensation
withheld while its obligations under this Agreement were
suspended, and (ii) reinstate (in whole or in part) any of its
obligations which were suspended.
(c) If the Officer is removed from office and/or
permanently prohibited from participating in the conduct of the
Employer's affairs by an order issued under Section 8(e)(4) or
Section 8(g)(1) of the FDIA (12 U.S.C. 1818(e)(4) and (g)(1)),
all obligations of the Employer under this Agreement shall
terminate as of the effective date of the order, but vested
rights of the Officer and the Employer as of the date of
termination shall not be affected.
(d) If the Bank is in default, as defined in Section
3(x)(1) of the FDIA (12 U.S.C. 1813(x)(1)), all obligations
under this Agreement shall terminate as of the date of default,
but vested rights of the Officer and the Employer as of the date
of termination shall not be affected.
(e) All obligations under this Agreement shall be
terminated pursuant to 12 C.F.R. 563.39(b)(5) (except to the
extent that it is determined that continuation of the Agreement
for the continued operation of the Employer is necessary): (i)
by the Director of the Office of Thrift Supervision ("OTS"), or
his/her designee, at the time the Federal Deposit Insurance
Corporation ("FDIC") enters into an agreement to provide
assistance to or on behalf of the Bank under the authority
contained in Section 13(c) of the FDIA (12 U.S.C. 1823(c)); or
(ii) by the Director of the OTS, or his/her designee, at the time
the Director or his/her designee approves a supervisory merger to
resolve problems related to operation of the Bank or when the
Bank is determined by the Director of the OTS to be in an unsafe
or unsound condition, but vested rights of the Officer and the
Employer as of the date of termination shall not be affected.
17. Regulatory Prohibition. Notwithstanding any other
provision of this Agreement to the contrary, any payments made to
the Officer pursuant to this Agreement, or otherwise, are subject
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to and conditioned upon their compliance with Section 18(k) of the FDIA (12
U.S.C. 1828(k)) and the regulations promulgated thereunder, including 12
C.F.R. Part 359. In the event of the Officer's termination of employment with
the Bank for Cause, all employment relationships and managerial duties with
the Bank shall immediately cease regardless of whether the Officer remains
in the employ of the Corporation following such termination. Furthermore,
following such termination for Cause, the Officer will not, directly or
indirectly, influence or participate in the affairs or the operations of the
Bank.
18. Entire Agreement. This Agreement embodies the entire agreement
between the Employer and the Officer with respect to the matters agreed to
herein. All prior agreements between the Employer and the Officer with
respect to the matters agreed to herein are hereby superseded and shall
have no force or effect.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
Attest: WILLOW GROVE BANK
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx
______________________ By: ______________________________________
Xxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxx
Secretary President and Chief Executive Officer
OFFICER
/s/ Xxxxxxx Xxxxxxx
By: ______________________________________
Xxxxxxx Xxxxxxx
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