Exhibit 10.19
FORM OF
AMENDED AND
RESTATED
CHANGE IN CONTROL SEVERANCE
AGREEMENT BETWEEN
WILLOW FINANCIAL BANK AND
THIS AMENDED AND RESTATED CHANGE IN CONTROL
SEVERANCE AGREEMENT (this “Agreement”) is dated as of
October 23, 2007 and is between Willow Financial Bank, a
federally chartered savings bank (the “Bank” or the
“Employer”), and
(the “Officer”).
WITNESSETH
WHEREAS, the Bank was previously known as
Willow Grove Bank;
WHEREAS, the Officer is currently employed by
the Bank, and the Bank and the Officer have previously entered into
a change in control severance agreement dated
(the “Prior Agreement”);
WHEREAS, the Bank desires to amend and restate
the Prior Agreement in order to make changes to comply with Section
409A of the Internal Revenue Code of 1986, as amended (the
“Code”), as well as certain other changes;
and
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 year in which the Date of Termination occurs (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, or material breach of any provision of this
Agreement.
(c)
Change in Control. “Change in Control” shall
mean a change in the ownership of the Corporation or the Bank, a
change in the effective control of the Corporation or the Bank or a
change in the ownership of a substantial portion of the assets of
the Corporation or the Bank, in each case as provided under Section
409A of the Code and the regulations thereunder.
(d)
Corporation. Corporation shall mean Willow Financial
Bancorp, Inc.
(e)
Date of Termination. “Date of Termination” shall
mean (i) if the Officer’s employment is terminated for Cause,
the date on which the Notice of Termination is given, (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 specified in such Notice of
Termination.
(f)
Disability. “Disability” shall mean the Officer
(i) is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months, or (ii) is, by
reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months, receiving
income replacement benefits for a period of not less than three
months under an accident and health plan covering employees of the
Employer.
(g)
Effective Date. The Effective Date of this Agreement shall
mean the date first written above.
(h)
Good Reason. Termination by the Officer of the
Officer’s employment for “Good Reason” shall mean
termination by the Officer based on the occurrence of any of the
following events:
(i)
(A) a material diminution in the Officer’s base compensation
as in effect immediately prior to the date of the Change in Control
or as the same may be increased from time to time thereafter, (B) a
material diminution in the Officer’s authority, duties or
responsibilities as in effect immediately prior to the Change in
Control, or (C) a material diminution in the authority, duties or
responsibilities of the officer (as in effect immediately prior to
the date of the Change in Control) to whom the Officer is required
to report immediately prior to the Change in Control,
(ii) any material breach of this Agreement by
the Employer, or
(iii) any material change in the geographic
location at which the Officer must perform his services under this
Agreement immediately prior to the Change in Control;
provided,
however, that prior to any termination of employment for Good
Reason, the Officer must first provide written notice to the
Employer within ninety (90) days of the initial existence of the
condition, describing the existence of such condition, and the
Employer shall thereafter have the right to remedy the condition
within thirty (30) days of the date the Employer received the
written notice from the Officer. If the Employer remedies the
condition within such thirty (30) day cure
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period, then
no Good Reason shall be deemed to exist with respect to such
condition. If the Employer does not remedy the condition within
such thirty (30) day cure period, then the Officer may deliver a
Notice of Termination for Good Reason at any time within sixty (60)
days following the expiration of such cure period.
(i)
IRS. IRS shall mean the Internal Revenue Service.
(j)
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 a 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 the 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 17(a) hereof; and (iv) is given in the manner
specified in Section 8 hereof.
(k)
Retirement. “Retirement” shall mean voluntary
termination by the Officer in accordance with the Employer’s
retirement policies, including early retirement, generally
applicable to its 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, or (ii) the officer elects to terminate his employment
for other than 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 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;
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provided that if the aggregate amount of such
installment payments would exceed two times the lesser of the
amounts specified in subsections (1) and (2) of Treasury Regulation
‘1.409A-1(b)(9)(iii)(A), then the monthly installments shall
not commence until the first business day of the month following
the lapse of six months from the Date of Termination (the
“Delayed Payment Date”), with the monthly installments
that would have been paid prior to the Delayed Payment Date absent
the six-month delay required by Section 409A of the Code to be
aggregated and included in the payment made on the Delayed Payment
Date and to be counted toward the total of twelve (12) monthly
installments; 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 immediately prior to the Date of
Termination; provided that any insurance premiums payable by the
Employer or any successors pursuant to this Section 2(c)(B) shall
be payable at such times and in such amounts as if the Officer was
still an employee of the Employer, subject to any increases in such
amounts imposed by the insurance company or COBRA, and the amount
of insurance premiums required to be paid by the Employer in any
taxable year shall not affect the amount of insurance premiums
required to be paid by the Employer in any other taxable year; and
provided further that if the Officer’s participation in any
group insurance plan is barred, the Employer shall either arrange
to provide the Officer with insurance benefits substantially
similar to those which the Officer was entitled to receive under
such group insurance plan o
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