WILLOW FINANCIAL BANCORP, INC. AMENDED AND RESTATED 2005 RECOGNITION AND RETENTION PLAN AND TRUST AGREEMENT
EXHIBIT
10.4
AMENDED
AND RESTATED 2005 RECOGNITION
AND
RETENTION PLAN AND TRUST AGREEMENT
ARTICLE
I
1.01 Willow
Financial Bancorp, Inc. (formerly known as “Willow Grove Bancorp, Inc.”) (the
“Corporation”) hereby amends and restates its 2005 Recognition and Retention
Plan (the “Plan”) and Trust (the “Trust”) upon the terms and conditions
hereinafter stated in this amended and restated 2005 Recognition and Retention
Plan and Trust Agreement (the “Agreement”), with the amendment and restatement
effective as of October 28, 2008.
1.02 The
Trustee hereby accepts this Trust and agrees to hold the Trust assets existing
on the date of this Agreement and all additions and accretions thereto upon the
terms and conditions hereinafter stated.
ARTICLE
II
The purpose of the Plan is to (i)
retain personnel of experience and ability in key positions by providing
Employees and Non-Employee Directors with a proprietary interest in the
Corporation and its Subsidiary Companies as compensation for their contributions
to the Corporation and the Subsidiary Companies and as an incentive to make such
contributions in the future,
and (ii) replace certain cash based benefit plans previously provided by
the Corporation to Officers and Non-Employee Directors. Each
Recipient of a Plan Share Award hereunder is advised to consult with his or her
personal tax advisor with respect to the tax consequences under federal, state,
local and other tax laws of the receipt of a Plan Share Award
hereunder.
ARTICLE
III
The following words and phrases when
used in this Agreement with an initial capital letter, unless the context
clearly indicates otherwise, shall have the meanings set forth
below. Wherever appropriate, the masculine pronouns shall include the
feminine pronouns and the singular shall include the plural.
3.01 “Advisory
Director” means a person appointed to serve as an advisory or emeritus director
by the Board of either the Corporation or the Bank or the successors
thereto.
3.02 “Bank”
means Willow Financial Bank (formerly known as “Willow Grove Bank”), the wholly
owned subsidiary of the Corporation.
3.03 “Beneficiary”
means the person or persons designated by a Recipient to receive any benefits
payable under the Plan in the event of such Recipient’s death. Such
person or persons shall be designated in writing on forms provided for this
purpose by the Committee and may be changed from time to time by similar written
notice to the Committee. In the absence of a written designation, the
Beneficiary shall be the Recipient’s surviving spouse, if any, or if none, his
or her estate.
3.04 “Board”
means the Board of Directors of the Corporation.
3.05 "Change
in Control" shall mean a change in the ownership of the Corporation, a change in
the effective control of the Corporation or a change in the ownership of a
substantial portion of the assets of the Corporation, in each case as provided
under Section 409A of the Code and the regulations thereunder.
3.06 “Code”
means the Internal Revenue Code of 1986, as amended.
3.07 “Committee”
means the committee appointed by the Board pursuant to Article IV
hereof.
3.08 “Common
Stock” means shares of the common stock, $0.01 par value per share, of the
Corporation.
3.09 “Director”
means a member of the Board of Directors of the Corporation or a Subsidiary
Company or any successors thereto, including Non-Employee Directors as well as
Officers and Employees serving as Directors.
3.10 “Director
Emeritus” and “Advisory Director” mean a person appointed to serve in such
capacity by the Board of either the Corporation or the Bank or the successors
thereto.
3.11 “Disability”
means the Recipient (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
Corporation or the Bank (or would have received such benefits for at least three
months if he had been eligible to participate in such plan).
3.12 “Effective
Date” means the day upon which the Board originally adopted this Plan, which was
September 27, 2005.
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3.13 “Employee”
means any person who is employed by the Corporation or a Subsidiary Company or
is an Officer of the Corporation or a Subsidiary Company, but not including
directors who are not also Officers of or otherwise employed by the Corporation
or a Subsidiary Company.
3.14 “Employer
Group” means the Corporation and any Subsidiary Company which, with the consent
of the Board, agrees to participate in the Plan.
3.15 “Exchange
Act” means the Securities Exchange Act of 1934, as amended.
3.16 “Non-Employee
Director” means a member of the Board (including advisory boards, if any) of the
Corporation or any Subsidiary Company or any successor thereto, including an
Advisory Director of the Board of the Corporation and/or any Subsidiary Company
or a former Officer or Employee of the Corporation and/or any Subsidiary Company
serving as a Director, Advisory Director or Director Emeritus who is not an
Officer or Employee of the Corporation or any Subsidiary Company.
3.17 “Officer”
means an Employee whose position in the Corporation or a Subsidiary Company is
that of a corporate officer, as determined by the Board.
3.18 “Plan
Shares” or “Shares” means shares of Common Stock which may be distributed to a
Recipient pursuant to the Plan.
3.19 “Plan
Share Award” or “Award” means a right granted under this Plan to receive a
distribution of Plan Shares upon completion of the service requirements
described in Article VII hereof.
3.20 “Recipient”
means an Employee or Non-Employee Director or former Employee or Non-Employee
Director who receives a Plan Share Award under the Plan.
3.21 “Retirement”
means:
(a) A
voluntary termination of employment after the later of (i) the one-year
anniversary of the date a Plan Share Award is granted or (ii) reaching 65 years
of age; provided, however, that the provisions of this subsection (a) will not
apply as long as a Recipient continues to serve as a Non-Employee
Director.
(b) With
respect to Non-Employee Directors, retirement means retirement from service on
the Board of Directors of the Corporation or a Subsidiary Company or any
successors thereto (including service as an Advisory Director to the Corporation
or any Subsidiary Company) after the later of (i) the one-year anniversary of
the date a Plan Share Award is granted or (ii) reaching 62 years of
age.
3.21 “Subsidiary
Companies” means those subsidiaries of the Corporation, including the Bank,
which meet the definition of “subsidiary corporations” set forth in Section
424(f) of the Code, at the time of the granting of the Plan Share Award in
question.
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3.22 “Trustee”
means such firm, entity or persons approved by the Board to hold legal title to
the Plan and the Plan assets for the purposes set forth herein.
ARTICLE
IV
4.01 Duties of
the Committee. The Plan shall be administered and interpreted
by the Committee, which shall consist of the Compensation Committee of the Board
or, if there is no Compensation Committee, two or more members of the Board,
each of whom shall be a Non-Employee Director, as defined in Rule 16b-3(b)(3)(i)
of the Exchange Act. Each member of the Committee shall be an
“independent director” as such term is defined in Rule 4200(a)(15) of the
Marketplace Rules of the Nasdaq Stock Market. The Committee shall
have all of the powers allocated to it in this and other Sections of the
Plan. The interpretation and construction by the Committee of any
provisions of the Plan or of any Plan Share Award granted hereunder shall be
final and binding in the absence of action by the Board. The
Committee shall act by vote or written consent of a majority of its
members. Subject to the express provisions and limitations of the
Plan, the Committee may adopt such rules, regulations and procedures as it deems
appropriate for the conduct of its affairs. The Committee shall
report its actions and decisions with respect to the Plan to the Board at
appropriate times, but in no event less than once per calendar
year.
4.02 Role of
the Board. The members of the Committee and the Trustee shall
be appointed or approved by, and will serve at the pleasure of, the
Board. The Board may in its discretion from time to time remove
members from, or add members to, the Committee, and may remove or replace the
Trustee, provided that any directors who are selected as members of the
Committee shall be Non-Employee Directors.
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ARTICLE
V
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ARTICLE
VI
ARTICLE
VII
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ARTICLE
VIII
(a) To
invest up to one hundred percent (100%) of all Trust assets in Common Stock
without regard to any law now or hereafter in force limiting investments for
trustees or other fiduciaries. The investment authorized herein may
constitute the only investment of the Trust, and in making such investment, the
Trustee is authorized to purchase Common Stock from the Corporation or from any
other source, and such Common Stock so purchased may be outstanding, newly
issued, or treasury shares.
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(b) To
invest any Trust assets not otherwise invested in accordance with (a) above, in
such deposit accounts, and certificates of deposit, obligations of the United
States Government or its agencies or such other investments as shall be
considered the equivalent of cash.
(c) To
cause stocks, bonds or other securities to be registered in the name of a
nominee, without the addition of words indicating that such security is an asset
of the Trust (but accurate records shall be maintained showing that such
security is an asset of the Trust).
(d) To
hold cash without interest in such amounts as may in the opinion of the Trustee
be reasonable for the proper operation of the Plan and Trust.
(e) To
employ brokers, agents, custodians, consultants and accountants.
(f) To
hire counsel to render advice with respect to its rights, duties and obligations
hereunder, and such other legal services or representation as it may deem
desirable.
(g) To
hold funds and securities representing the amounts to be distributed to a
Recipient or his Beneficiary as a consequence of a dispute as to the disposition
thereof, whether in a segregated account or held in common with other assets of
the Trust.
Notwithstanding anything herein
contained to the contrary, the Trustee shall not be required to make any
inventory, appraisal or settlement or report to any court, or to secure any
order of court for the exercise of any power herein contained, or give
bond.
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ARTICLE
IX
ARTICLE
X
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10.05 Governing
Law. To the extent not governed by federal law, the Plan and
Trust shall be governed by the laws of the Commonwealth of
Pennsylvania.
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IN WITNESS WHEREOF, the
Corporation has caused this Agreement to be executed by its duly authorized
officers and the Trustees of the Trust established pursuant hereto have duly and
validly executed this Agreement, all on this 28th day of
October, 2008.
WILLOW FINANCIAL BANCORP, INC. |
TRUSTEES:
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By:
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/s/ Xxxxx X.
Xxxxxxx
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/s/ Xxxxx X.
Xxxxxxx
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Xxxxx
X. Xxxxxxx
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Xxxxx
X. Xxxxxxx
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President
and Chief Executive Officer
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/s/ Xxxxx X. Xxxx | ||||
Xxxxx
X. Xxxx
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/s/ Xxxxxxx
Xxxxxx
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Xxxxxxx
Xxxxxx
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