SEVERANCE AND RELEASE AGREEMENT
Exhibit 10.1
THIS
SEVERANCE AND RELEASE AGREEMENT (the “Agreement”) is made this 20th day of
June 2008 by and between Xxxxxx X. Xxxxxxx (the “Employee”), Willow Financial
Bancorp, Inc., a Pennsylvania corporation (the “Company”) and Willow Financial
Bank, a federally 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.
W I T N E S S E T H:
WHEREAS,
the Employee currently serves as the Senior Vice President and Corporate
Secretary of the Employers;
WHEREAS,
the Employee currently is a party to an Amended and Restated Employment
Agreement with the Company and the Bank, dated as of October 23, 2007, as
amended by Amendment No. 1 thereto, dated as of May 6, 2008 (collectively, the
“Employment Agreement”), setting forth the terms and conditions of his
employment; and
WHEREAS,
the Employers and Employee have had discussions with respect to the termination
of the Employee=s
employment and the payments the Employers would agree to make pursuant to such
termination;
NOW,
THEREFORE, in consideration of the mutual premises and covenants contained
herein, and intending to be legally bound, the parties agree as
follows:
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1.
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Termination
of Employment and Employment Agreement. Effective as of
June 30, 2008, the Employee shall no longer be an officer or employee of
the Employers and shall be deemed to have resigned as an officer and
employee of the Employers. The Employment Agreement, by mutual agreement
of the parties hereto, shall be terminated and be of no further force and
effect as of June 30, 2008 (the “Date of Termination”) and the Executive
shall be entitled to the rights and payments set forth herein in lieu of
any rights and payments under the Employment Agreement or under any
severance plan of the
Employers.
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1.
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Payments
and Benefits to the Employee
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(a) The Employers
agree to pay a gross lump sum amount of $55,497.75 to the Employee within
five business days following the later of (i) the Date of
Termination or (ii) the expiration of the seven day revocation period set
forth in Section 8(e) below, which amount represents three months of base
salary. The gross amount shall be reduced by applicable
withholding taxes. Through the Date of Termination and for a
period of three months thereafter, the Employee will continue to
participate in the Bank=s
group health and dental insurance plans on the same terms and cost to the
Employee as currently being
provided.
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(b) The
Employers shall have no obligation to make contributions for service subsequent
to the Date of Termination with respect to their 401(k) Plan or their Employee
Stock Ownership Plan or any other retirement or profit sharing plan on behalf of
the Employee, and the Employee shall have no right to participate in such plans
for service after the Date of Termination. All of the Employee=s
accrued and vested benefits held under the Employers’ Employee Stock Ownership
Plan, 401(k) Plan, or other retirement or benefit plans as of the Date of
Termination 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.
(c) The
value of the Employee’s accrued and unpaid vacation and other leave time as of
the Date of Termination shall be paid to the Employee not later than the date of
the payment set forth in Section 2(a) above.
(d) The
Employee shall not be entitled to a cash bonus for service in 2008 under any
Employer bonus plan.
(e)
The Employers agree not to object to any application for unemployment
benefits, which may be made by the Employee after the Date of
Termination.
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3.
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Post-Termination
Services. Following the Date of Termination and ending
on the twelve-month anniversary of the Date of Termination, the Employee
shall make himself available to the Employers and their subsidiaries
(including any successor) in connection with the business of the Employers
and their subsidiaries as may be reasonably requested from time to time by
the Employers in order to provide advice and counsel to the Employers with
respect to matters within the Employee’s employment duties prior to the
Date of Termination. The Employee shall use his reasonable best
efforts to provide the services hereunder in person, telephonically,
electronically or by correspondence as reasonably determined by the
Employers. The Employee shall not receive any additional
compensation for these
services.
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4.
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Stock
Option Plans. It is acknowledged that no additional
arrangements are being provided by the Employers to the Employee under any
of the Company’s stock option plans, including the stock option plans
previously implemented by Xxxxxxx Valley Bancorp, Inc. (the “Option
Plans”), and that awards previously made by the Employers to the Employee
which have not as yet vested under the Option Plans shall not accelerate
and are intended to terminate in accordance with the terms of the Option
Plans.
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5.
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Recognition
and Retention Plans. It is acknowledged that no
additional arrangements are being provided by the Employers to the
Employee under any of the Company’s recognition and retention plans (the
“RRPs”) and that awards previously made by the Employers to the Employee
which have not as yet vested or been earned under the RRPs shall not
accelerate or be deemed earned and are intended to be forfeited in
accordance with the terms of the RRPs as of the date
hereof.
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6.
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Solicitation
of Customers; 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. Further, the Employee agrees that
he will not solicit any current customer of the Employers for a period of
twelve (12) months from the Date of Termination for the purpose or intent
to provide or sell to such customers any banking, financial or business
services or products on behalf of any person, company or entity other than
the Employers without the express written consent of the
Employers.
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7.
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Confidentiality;
Non-Disparagement.
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(a) Unless
the Employee obtains the prior written consent of the Employers, the Employee
shall at all times keep confidential and shall refrain from using for the
benefit of himself, or any person or entity other than the Employers or their
subsidiaries or affiliates, any material document or information obtained from
the Employers or their subsidiaries, affiliates or predecessors, in the course
of his employment with any of them concerning their properties, operations or
business (unless such document or information is readily ascertainable from
public or published information or trade sources or has otherwise been made
available to the public through no fault of his own) until the same ceases to be
material (or becomes so ascertainable or available); provided, however, that
nothing in this Section 7(a) shall prevent the Employee, with or without the
Employers’ consent, from participating in or disclosing documents or information
in connection with any judicial or administrative investigation, inquiry or
proceeding or the Company's public reporting requirements to the extent that
such participation or disclosure is required under applicable law. 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 and banking laws and regulations.
(b) The
Employee agrees not to make, either directly or indirectly, or cause to be made,
either directly or indirectly, by any other person or entity, any statement or
comment, whether oral, written, electronic or otherwise, or to take any other
action which disparages or criticizes the Employers, their present or
former directors, officers, employees, management, practices or services, or
which disrupts or impairs or could disrupt or impair the operations of the
Employers, where such statements, comments or actions are based upon the
Employee=s
employment by the Employers, either as a director, officer or employee, or
knowledge gained as a result of such employment.
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(c) Each
of the Employers and the Employee covenants and agrees that upon any
adjudication that such party has violated the terms of this Section 7, the party
asserting such a violation shall be entitled to seek and be awarded damages
together with such party=s
costs, reasonable attorneys=
fees and expenses in connection with enforcing the terms hereof.
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8.
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Release
of the Employers and Related
Parties.
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(a) In
consideration of the payments and benefits to be provided to the Employee
pursuant to this Agreement, the sufficiency of which is acknowledged hereby, the
Employee, with the intention of binding himself and his heirs, executors,
administrators and assigns, does hereby release, remise, acquit and forever
discharge the Company and its subsidiaries and affiliates, including the Bank
(the “Company
Affiliated Group”), their present and former officers, directors,
executives, agents, attorneys and employees, and the successors, predecessors
and assigns of each of the foregoing (collectively, the “Company
Released Parties”), of and from any and all claims, actions, causes of
action, complaints, charges, demands, rights, damages, debts, sums of money,
accounts, financial obligations, suits, expenses, attorneys’ fees and
liabilities of whatever kind or nature in law, equity or otherwise, whether
accrued, absolute, contingent, unliquidated or otherwise and whether now known
or unknown, suspected or unsuspected, which the Employee, individually or as a
member of a class, now has, owns or holds, or has at any time heretofore had,
owned or held, against any Company Released Party in any capacity, including,
without limitation, any and all claims (i) arising out of or in any way
connected with the Employee’s service to any member of the Company Affiliated
Group (or the predecessors thereof) in any capacity, or the termination of such
service in any such capacity, (ii) for severance or vacation benefits, unpaid
wages, salary or incentive payments, (iii) for breach of contract, wrongful
discharge, impairment of economic opportunity, defamation, intentional
infliction of emotional harm or other tort, (iv) for any violation of applicable
state and local labor and employment laws (including, without limitation, all
laws concerning unlawful and unfair labor and employment practices) and (v) for
employment discrimination under any applicable federal, state or local statute,
provision, order or regulation, and including, without limitation, any claim
under Title VII of the Civil Rights Act of 1964 (“Title
VII”), the Civil Rights Act of 1988, the Fair Labor Standards Act, the
Americans with Disabilities Act (“ADA”),
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
the Age Discrimination in Employment Act (“ADEA”)
and any similar or analogous state statute, excepting only:
(A) the
rights of the Employee (i) relating to any vested stock options held by the
Employee under the Option Plans (collectively, the “Equity
Arrangements”) and (ii) as a stockholder of the Company;
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(B) the
right of the Employee to receive COBRA continuation coverage in accordance with
applicable law;
(C) rights
to indemnification the Employee may have under (i) applicable corporate law,
(ii) the articles of incorporation, charter or bylaws of any Company Released
Party, (iii) any other agreement between the Employee and a Company Released
Party, or (iv) as an insured under any director’s and officer’s liability
insurance policy now or previously in force; and
(D)
claims for benefits under any health, disability, retirement, life
insurance or other similar “employee benefit plan” (within the meaning of
Section 3(3) of ERISA) of the Company Affiliated Group (the “Company
Benefit Plans”).
(b) The
Employee acknowledges and agrees that the release of claims set forth in this
Section 8 is not to be construed in any way as an admission of any liability
whatsoever by any Company Released Party, with any such liability being
expressly denied.
(c) The
release of claims set forth in this Section 8 applies to any relief no matter
how called, including, without limitation, wages, back pay, front pay,
compensatory damages, liquidated damages, punitive damages, damages for pain or
suffering, costs, and attorney’s fees and expenses.
(d) The
Employee specifically acknowledges that his acceptance of the terms of the
release of claims set forth in this Section 8 is, among other things, a specific
waiver of his rights, claims and causes of action under Title VII, ADEA, ADA and
any state or local law or regulation in respect of discrimination of any
kind.
(e) The
Employee shall have a period of 21 days to consider whether to execute this
Agreement. To the extent the Employee has executed this Agreement within less
than twenty-one (21) days after its delivery to him, the Employee hereby
acknowledges that his decision to execute this Agreement prior to the expiration
of such twenty-one (21) day period was entirely voluntary. If
the Employee accepts the terms hereof and executes this Agreement, he may
thereafter, for a period of 7 days following (and not including) the date of
execution, revoke this Agreement. If no such revocation occurs, this Agreement
shall become irrevocable in its entirety, and binding and enforceable against
the Employee, on the day next following the day on which the foregoing seven-day
period has elapsed. Any revocation of this Agreement shall be deemed for all
purposes a revocation of this Agreement in its entirety.
(f) The
Employee acknowledges and agrees that he has not, with respect to any
transaction or state of facts existing prior to the date hereof, filed any
complaints, charges or lawsuits against any Company Released Party with any
governmental agency, court or tribunal.
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(g) In
addition to any other remedy available to the Employers hereunder, in the event
that, as a result of a challenge brought by an Employee Released Party (as
defined below), the release of claims set forth in Section 8 becomes null and
void or is otherwise determined not to be enforceable, then the Employers’
obligation to make any additional payments or to provide any additional benefits
this Agreement shall immediately cease to be of any force and effect, and the
Employee shall promptly return to the Employers any payments or benefits
(including those set forth in Section 2(a) hereof) the provision of which by the
Employers was conditioned on the enforceability of this Agreement.
(h) The
Employee acknowledges that (i) he is executing this Agreement voluntarily and
without any duress or undue influence by any of the parties hereto, (ii) he has
been advised to consult with an attorney of his choice and has been given an
opportunity to do so, and (iii) he has carefully read this Agreement and the
releases contained herein and understands its contents and
consequences.
9. Release of
Claims by the Employers.
(a) The
Employers, with the intention of binding themselves and their subsidiaries,
affiliates, predecessors and successors and their directors and officers
(collectively, the “Releasing Entities”), do hereby release, remise, acquit and
forever discharge the Employee and his heirs, estate, executors, administrators
and assigns (collectively, the “Employee
Released Parties”), of and from any and all claims, actions, causes of
action, complaints, charges, demands, rights, damages, debts, sums of money,
accounts, financial obligations, suits, expenses, attorneys’ fees and
liabilities of whatever kind or nature in law, equity or otherwise, whether
accrued, absolute, contingent, unliquidated or otherwise and whether now known
or unknown, suspected or unsuspected, which the Employers and their
subsidiaries, affiliates, predecessors and successors, individually or as a
member of a class, now have, own or hold, or have at any time heretofore had,
owned or held, against any Employee Released Party, excepting only:
(A) rights
of the Releasing Entities under this Agreement, the Employment Agreement, the
Equity Arrangements and the Company Benefit Plans;
(B) rights
of the Releasing Entities arising by reason of the Employee having (i) committed
a crime or an act or omission to act which constitutes fraud, willful misconduct
or gross negligence; or (ii) made any representation or warranty to the
Employers which is materially false or misleading; and
(C) rights
of the Releasing Entities pursuant to any mortgage or loan agreement between any
Releasing Entity and the Employee or in connection with any indebtedness or
overdraft owed by the Employee to any Releasing Entity.
(b) The
Releasing Entities acknowledge and agree that the release of claims set forth in
this Section 9 is not to be construed in any way as an admission of any
liability whatsoever by any Employee Released Party, with any such liability
being expressly denied.
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(c)
The release of claims set forth in this Section 9 applies to
any relief no matter how called, including, without limitation, compensatory
damages, liquidated damages, punitive damages, damages for pain or suffering,
costs, and attorney’s fees and expenses.
(d)
Nothing herein shall be deemed, nor does anything contained herein purport, to
be a waiver of any right or claim or cause of action which by law the Employers
are not permitted to waive.
(e)
The Employers acknowledge and agree that they have not, with respect to
any transaction or state of facts existing prior to the date hereof, filed any
complaints, charges or lawsuits against any Employee Released Party with any
governmental agency, court or tribunal.
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10.
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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.
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11.
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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.
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12.
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Amendment
and Waiver. The terms of this Agreement may not be
modified other than in 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.
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13.
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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:
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If to the
Employee:
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Xxxxxx
X. Xxxxxxx
At
his last address on file with
the
Employers
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If to the
Employers:
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Willow
Financial Bank
000 Xxxxx Xxxxxx Xxxx
Xxxxx,
Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
President and Chief Executive
Officer
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14.
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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 supersedes
any prior agreements between the Employers and the Employee with respect
to the subject matter hereof, including but not limited to the Employment
Agreement. In reaching this Agreement, no party has relied upon
any representation or promise except those set forth
herein.
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15.
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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 comprised 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 deletion from this
Agreement.
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16.
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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.
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17.
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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.
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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 written above.
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WITNESSES:
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/s/
Xxxxxx X. Xxxxx
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By:
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/s/
Xxxxx X. Xxxxxxx
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Xxxxx
X. Xxxxxxx
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President
and Chief Executive Officer
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WILLOW
FINANCIAL BANK
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/s/
Xxxxxx X. Xxxxx
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By:
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/s/
Xxxxx X. Xxxxxxx
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Xxxxx
X. Xxxxxxx
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President
and Chief Executive Officer
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EMPLOYEE
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/s/
Xxxxxx X. Xxxxx
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By:
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/s/
Xxxxxx X. Xxxxxxx
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Xxxxxx
X. Xxxxxxx
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