Exhibit 10.4
SEVERANCE AND RELEASE AGREEMENT
THIS SEVERANCE AND RELEASE AGREEMENT (the "Agreement") is made this
19th day of June 1998 by and between Xxxxxx X. Xxxxxx (the "Employee"), WVS
Financial Corp., a Pennsylvania corporation (the "Company") and West View
Savings Bank, a Pennsylvania-chartered savings bank and wholly-owned subsidiary
of the Company (the "Bank"). The Company and the Bank are sometimes collectively
referred to herein as the Employers.
WITNESSETH:
WHEREAS, the Employee currently serves as President and Chief Executive
Officer of the Company and the Bank and as a director of the Company and the
Bank;
WHEREAS, the Employers and Employee have had discussions prior to the
date hereof with respect to the termination of Employee's employment and the
payments the Employers would agree to make pursuant to such termination; and
WHEREAS, the Employers and the Employee have previously entered into an
employment agreement dated July 1, 1997 (the "Employment Agreement");
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein, and intending to be legally bound, the parties agree as
follows:
1. Termination of Employment and Directorship. With the execution of
this Agreement, the Employee shall no longer be an officer,
director or employee of the Company or the Bank and shall deemed
to have resigned as an officer and employee of the Company and the
Bank and as a member of the Board of Directors of the Company and
of the Bank.
2. Payments and Benefits to the Employee.
(a) The Employers agree to make a lump-sum payment of $135,000 to
Employee payable as of July 31, 1998. In addition, the Employers
agree to pay to the Employee an aggregate of $421,200, such amount
to be paid in seventy-two (72) equal semi-monthly installments of
$5,850 due the fifteenth day and the last day of each month with
the first payment to be paid on July 15, 1998 and the last payment
to be made on June 30, 2001 (as W-2 wages). From the date hereof
through June 30, 1998, you will be paid your current salary and
will continue to participate in the Employers' group health and
tax-qualified retirement plans. The Employer shall have no
obligation to make contributions for service subsequent to June
30, 1998 to its tax qualified retirement plans on behalf of
Employee and Employee shall have no right to participate for
service subsequent to June 30, 1998.
(b) The Employee shall be entitled to participate in the
Employer's Health Assurance Medical Plan and other group health
plans (including the Employer's Cancer Plan and Dental Plan) and
the Employee's wife shall be entitled to participate in the
Employer's Health Assurance Medical Plan, each for a period of
thirty-six (36) months from July 1, 1998 through June 30, 2001 at
no cost to the Employee or his wife.
(c) The Employers will pay the Employee a monthly cash allowance
of $400 for a twelve (12) month period commencing on July 1, 1998
and ending on June 30, 1999. Subsequent to July 1, 1998, Employee
shall have no right to the continued use of the automobile
currently provided by the Employer.
(d) All of Employee's accrued and vested benefits as of June 30,
1998 held under the Employers' tax qualified retirement plans
shall be available for distribution which shall be made in the
ordinary course of business in accordance with such plan terms and
past practice of the Employers.
3. Stock Incentive and Recognition Plans. It is acknowledged that no
additional arrangements are being provided by the Employers to the
Employee under the Employer's 1993 Stock Incentive Plan or the
Recognition and Retention Plan and Trust for Officers, and that
awards previously made by the Employers to the Employee which have
not as yet vested under each of such plans shall not accelerate
and are intended to terminate in accordance with the terms of such
plans. All stock options vested as of June 30, 1998 shall remain
exercisable through September 30, 1998.
4. Indemnification. The Employers agree to indemnify the Employee
against any judicial or administrative proceeding, or threatened
proceeding, whether civil or criminal, against the Employee
arising out of the Employee's position as an employee, officer
and/or director of the Employers to the fullest extent authorized
by the Employer's charter, bylaws or other governing instrument
and applicable law and regulations, including the payment of legal
fees and documented out-of-pocket expenses in defending against
claims, actions or proceedings. If Employee wishes to claim
indemnification under this Section 4 he shall upon learning of
such claim, action or proceeding promptly notify Employers
thereof. Employers shall have the right to assume the defense
thereof and shall not be liable to Employee for any legal expenses
of other counsel subsequently incurred by Employee in connection
with the defense thereof, except if Employer elects not to assume
such defense.
5. Use of Customer Lists, etc. The Employee acknowledges that, except
as required by law or in his own good faith use in any proceeding,
he has no right personally to use or disclose to any person, firm
or corporation, information concerning any customer list, business
secrets or confidential financial information of the Employers
that he knew was intended by the Employers to be confidential and
that he did not have reason to believe had been made public
(collectively, "Confidential Information"). Accordingly, the
Employee covenants and agrees that he shall not use or permit the
use of any Confidential Information, and shall not divulge any
Confidential Information to any person, firm or corporation,
except as may be required by applicable law arising out of his
employment with or participation in the affairs of the Employers.
6. Release of the Employers and Related Parties.
(a) For, and in consideration of the commitments made herein by
the Employers, including specifically the release in Section 7
below, the Employee, for himself and for his heirs, successors and
assigns, does hereby release completely and forever discharge the
Employers and their respective subsidiaries, affiliates,
stockholders, attorneys, officers, directors, agents, employees,
successors and assigns, and any other party associated with the
Employers (the "Released Parties"), to the fullest extent
permitted by applicable law, from any and all claims, rights,
demands, actions, liabilities, obligations, causes of action of
any and all kinds, nature and character whatsoever, known or
unknown, in any way connected with his employment by the Employers
or termination thereof; provided that no such waiver shall be
effective with respect to Employee's rights related to COBRA,
ERISA or the Employer's Cancer Policy and Term Life Insurance
Policy. It is expressly understood that to the extent that the
Employee has any right to convert the Cancer Policy or Term Life
Insurance Policy to a personal policy, such conversion shall be at
no expense to the Employer.
(b) The Employee hereby specifically and unconditionally releases
the Released Parties from any and all claims which the Employee
may have against any of them and which arose on or before the date
of this Agreement under the Age Discrimination in Employment Act
(the "ADEA"), including, but not limited to, any claim
attributable to the Employers' solicitation of the Employee's
consent to the terms of this Agreement, and further acknowledges
and represents that
(i) the Employee waives the Employee's claims under ADEA
knowingly and voluntarily in exchange for the commitments
made herein by the Employers, and that the benefits
provided thereby constitute consideration of value to
which the Employee would not otherwise have been entitled;
(ii) the Employee has been advised in writing by the
Employers to consult an attorney in connection with this
Agreement;
(iii) the Employee has been given a period of 2l days
within which to consider the terms hereof;
(iv) the Employee may revoke the waiver of ADEA claims set
forth in this paragraph 6 for a period of seven (7) days
following the execution of this Agreement and the
Employee's waiver of ADEA claims hereunder shall not
become effective until the revocation period has expired;
(v) if the Employee revokes the waiver of ADEA claims in
accordance with subparagraph (iv) above, the Employee
shall cease to receive the payments and benefits specified
in paragraph 2 hereof, but such revocation shall not be
effective with respect to the remainder of this Agreement
and the consideration received by the Employee prior to
the revocation shall be valid and adequate consideration
with respect to the remainder of this Agreement; and
(vi) this Agreement complies in all respects with Section
7(f) of ADEA, the waiver provisions of the Older Worker
Benefit Protection Act.
(c) Notwithstanding the foregoing, the Employee does not release
the Employers from claims arising out of any breach of this
Agreement.
7. General Release of the Employee. For, and in consideration of the
commitments made herein by the Employee, including specifically the
release in Section 6 above, the Employers, for themselves, and for
their respective successors and assigns do hereby release completely
and forever discharge the Employee and his heirs, successors and
assigns, to the fullest extent permitted by applicable law, from any
and all claims, rights, demands, actions, liabilities, obligations,
causes of action of any kinds, nature and character whatsoever, known
or unknown, in any way connected with the Employee's position as an
employee, officer or director of the Employers. Notwithstanding
anything in the foregoing to the contrary, the Employers do not release
the Employee from claims arising out of any breach of this Agreement.
8. Representation. The Employers and the Employee represent that they have
reviewed this Agreement, and that each of them is fully aware of the
content of this Agreement and of its legal effect, and acknowledge that
this is a legally valid and binding obligation of the parties.
9. Withholding. The Employers may make such provisions as they deem
appropriate for the withholding pursuant to federal or state income tax
laws of such amounts as the Employers determine they are required to
withhold in connection with the payments to be made pursuant to this
Agreement.
10. Amendment and Waiver. The terms of this Agreement may not be modified
other than in a writing signed by the parties. No term or condition of
this Agreement shall be deemed to have been waived, nor shall there be
any estoppel against enforcement of any provision of this Agreement,
except by written instrument of the party charged with such waiver or
estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate
only as to the specific term or condition for the future or as to any
act other than that specifically waived.
11. Notices. All notices, demands, consents or other communication required
or permitted hereunder shall be in writing and shall be deemed to have
been given when: (i) personally delivered, or (ii) sent postage prepaid
by registered or certified mail, return receipt requested, such receipt
showing delivery to have been made, or (iii) sent overnight by prepaid
receipt courier addressed as follows:
If to the Employee: Xxxxxx X. Xxxxxx
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
If to the Employers: WVS Financial Corp.
West View Savings Bank
McCandless Xxxxxx
0000 Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
12. Entire Agreement. This Agreement incorporates the entire understanding
among the parties relating to the subject matter hereof, recites the
sole consideration for the promises exchanged and supercedes any prior
agreements between the Employers and the Employee with respect to the
subject matter hereof, including without limitation, as of the date
hereof, the Employment Agreement. In reaching this Agreement, no party
has relied upon any representation or promise except those set forth
herein.
13. Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws
effective during the term of this Agreement, such provision shall be
fully severable and this Agreement shall be construed and enforced as
if such illegal, invalid or unenforceable provision had never
compromised a part of this Agreement, and the remaining provisions of
this Agreement shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its
severance from this Agreement.
14. Bind and Inure. This Agreement shall be binding upon and inure to the
benefit of the Employee and the Employers and their respective heirs
and/or successors and permitted assigns.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, except to
the extent that applicable federal law preempts the laws of
Commonwealth of Pennsylvania.
16. Confidentiality. No disclosure of the contents of this Agreement shall
be made by either party to this Agreement without the prior written
consent of the other party; provided that such disclosure (including
disclosures contained in Company press releases and regulatory filings)
may be made as required in accordance with federal securities law and
regulations. The Employer will provide the Employee with a copy of the
proposed press release to be issued in connection with this Agreement
for review and comment.
IN WITNESS WHEREOF, the Company and the Bank have caused this Agreement
to be executed by their duly authorized representatives and the Employee has
executed this Agreement, all as of the day and year first above written.
WITNESSES:
WVS FINANCIAL CORP.
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. XxXxxx, Xx.
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Title: Chairman of the Board
WEST VIEW SAVINGS BANK
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. XxXxxx, Xx.
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Title: Chairman of the Board
WVS FINANCIAL CORP.
/s/ Xxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxx
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Title: President and Chief Executive Officer
WEST VIEW SAVINGS BANK
/s/ Xxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxx
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Title: President and Chief Executive Officer
XXXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxx
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