Severance Agreement

Amendment to Severance Agreement

 

 

EX-10 5 ex10-4.htm BOD SEVERANCE POLICY CEO EVP FEB 08


____________________________________________________________________________________________________

 

Organizational Functional Area:

Human Capital

 

Policy For:

Severance Policy, WSFS

 

 

Chief Executive Officer1

 

 

Executive Vice Presidents

 

 

SVP/Corporate Auditor (in part)

 

Board Approved:

February, 2008

 

Last Revision Date:

February, 2008

 

Department/Individual Responsible for

Executive Vice President,

 

Maintaining/Updating Policy:

Human Capital Director

 

____________________________________________________________________________________________________ 

 

I. Release Without Cause

In the event a Chief Executive Officer (“CEO”) or an

Executive Vice President (“EVP”) is released without Cause (as defined in Attachment A), a minimum of six months severance and professional level outplacement will be offered. If the Associate has not found new full time employment on or before six months after termination, severance pay and outplacement would continue for another six months or until the Associate found employment, whichever occurred first. In the event the Associate found a job, but at a lower rate of pay than previously received at WSFS, then WSFS would make up the difference until the second six-month period has ended. Medical and dental benefits will be offered at the Associate rate through the severance period.

 

II. Change of Control

If within one year after a change of control a CEO, EVP or SVP/Corporate Auditor is released without Cause (as defined in Attachment A) or is offered a position that is not within 25 driving miles of work site immediately before the change in control; and at no less than the same WSFS salary and bonus opportunity immediately before the change in control:

 

CEO or EVP would receive 24 months base salary. The CEO or EVP would be eligible for medical and dental benefits at the Associate rate for the 24-month period. Twelve months of Executive level outplacement will be offered.

 

SVP/Corporate Auditor would receive 12 months base salary. The SVP/Corporate Auditor would be eligible for medical and dental benefits at the Associate rate for the 12-month period. Six months of Executive level outplacement will be offered.

 

 _________________________

1 Specifically excluding Presidents or the equivalent of WSFS subsidiaries (e.g. Cash Connect, etc.)

 

 

 

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Receipt of Benefits

To receive any of the severance benefits outlined in this

policy, the CEO, EVP or SVP/Corporate Auditor must execute a release in a form acceptable to the Bank; and the Non-Solicitation Agreement attached hereto as Attachment B.

 

The severance pay will be paid consistent with WSFS’ regular pay schedule. All federal and state income and employment taxes will be withheld as required. Neither Associate nor employer contributions to the 401(k) may occur during the severance period consistent with the 401(k) Plan and Summary Plan Description

 

 

 

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Attachment A

Severance Policy; WSFS Chief Executive Officer, Executive Vice Presidents, and SVP/Corporate Auditor

February 2008

 

 

Cause. The Company may terminate Executive’s employment during the Employment Period with or without Cause. For purposes of Sections I and II of this Policy “Cause” shall mean:

 

(i) the willful and continued failure of Executive to perform substantially Executive’s duties with the Company or one of its affiliates (other than any such failure resulting from incapacity due to physical or mental illness) after a written demand for substantial performance is delivered to Executive by the Chief Executive Officer or the Board of Directors of the Company which specifically identifies the manner in which such Chief Executive Officer or the Board believes that Executive has not substantially performed Executive’s duties, or

 

(ii) the willful engaging by Executive in illegal conduct or gross misconduct which is materially and demonstrably injurious to the Company.

 

For the purposes of this provision, no act or failure to act on the part of Executive, shall be considered “willful” unless it is done, or omitted to be done, by Executive in bad faith or without reasonable belief that Executive’s action or omission was in the best interests of the Company. The cessation of employment of Executive shall not be deemed to be for Cause [under paragraph (i) or (ii) above] unless and until there shall have been delivered to Executive a copy of a resolution duly adopted by the affirmative vote of not less than a majority of the entire membership of the Board at a meeting of the Board called and held for such purpose, finding that, in the good faith opinion of the Board, Executive is guilty of the conduct described in subparagraph (i) or (ii) above, and specifying the particulars thereof in detail, or

 

(iii) the consistent failure of Executive to meet reasonable performance expectations (other than any such failure resulting from incapacity due to physical or mental illness); provided, however, that termination of Executive’s employment under this subparagraph (iii) shall not be effective unless at least 90 days prior to such termination Executive shall have received written notice from the Chief Executive Officer or the Board which specifically identifies the manner in which the Board or the Chief Executive Officer believes that Executive has consistently failed to meet reasonable performance expectations and Executive shall have failed after receipt of such notice to resume the diligent performance of his duties to the reasonable satisfaction of the Chief Executive Officer of the Board. The CEO, EVP or SVP/Corporate Auditor may not be Terminated for Cause under this paragraph (iii) once a change in control has occurred.

 

 

DB01:2519905.4

058592.1001

 

 


Attachment B

NON-SOLICITATION AGREEMENT

 

This Agreement is made this day of ______________, 2008 between WilmingtonSavings Fund Society, FSB (“Employer”) and _______________________ (“Executive”).

 

WHEREAS, Employer is a financial institution headquartered in Delaware with operations throughout the Mid-Atlantic region; and Executive is employed with Employer; and this Agreement is not designed to prevent Executive from obtaining employment following Executive’s departure from Employer, but is merely designed to protect Employer’s goodwill by placing reasonable restrictions on his or her ability to solicit customers and employees;

 

NOW, THEREFORE, in consideration for Executive’s employment with Employer and the mutual promises set forth herein, Employer and Executive agree as follows:

 

1.         Non-Solicitation: Executive shall not, during Executive’s employment with Employer and for a period of twelve (12) months following the termination of Executive’s employment, whether such termination is voluntary or involuntary and regardless of the reason for the termination, directly or indirectly, on Executive’s own behalf or in the service or on behalf of any person or entity, solicit, take away, accept, or attempt to solicit, take away, or accept any client, customer, account, employee, or personnel of Employer.

 

2.         Rights: This Agreement creates rights which cannot solely be protected by an award of money damages and that specific performance shall lie for any breach of this Agreement. Executive agrees, in the event of any breach of this Agreement, material or immaterial, that Employer will suffer irreparable harm and will not have an adequate remedy at law, that Employer may pursue and obtain preliminary and permanent injunctive relief.

 

3.         Agreement and Governing Law. This Agreement shall not be modified or amended except by a further written document signed by all parties, and shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. This Agreement shall be considered subject to and governed by the laws of the State of Delaware. Each party consents to the exclusive in personam jurisdiction of the courts of the State of Delaware in connection with any claim or dispute arising under or in connection with this Agreement.

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as set forth below:

 

 

EMPLOYER

 

By:________________________________

 

 

EXECUTIVE

 

___________________________________

 

 

 

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<DOCUMENT>

<TYPE>EX-10

<SEQUENCE>7

<FILENAME>ex10-7.txt

<DESCRIPTION>409A AMENDMENT OT SEVERANCE POLICY

<TEXT>

409A Amendments

 

                                Amendment to the

    WSFS Financial Corporation Severance Policy for Executive Vice Presidents

 

         This Amendment to the WSFS Financial Corporation Severance Policy for

Executive Vice Presidents (the "Policy") is made, effective as of December 31,

2008.

 

         WHEREAS, the Compensation Committee of the Board of Directors of WSFS

Financial Corporation (the "Company") has determined that it is in the best

interests of the Company to amend the Policy so as to meet the requirements of

Internal Revenue Code Section 409A;

 

         NOW, THEREFORE, the Policy is hereby amended as follows:

 

         1. The unnumbered Section entitled "Receipt of Benefits" is hereby

            numbered as Section III.

 

         2. A new Section IV is hereby added as follows:

 

         "IV. Section 409A of the Internal Revenue Code

 

         (a) General. This policy shall be interpreted and administered in a

         manner so that any amount or benefit payable hereunder shall be paid or

         provided in a manner that is either exempt from or compliant with the

         requirements of Section 409A of the Internal Revenue Code of 1986, as

         amended (the "Code"), and applicable regulations issued thereunder..

 

         (b) Definitional Restrictions. Notwithstanding anything in this policy

         to the contrary, to the extent that any amount or benefit that would

         constitute non-exempt "deferred compensation" for purposes of Section

         409A of the Code would otherwise be payable or distributable under the

         policy by reason of the occurrence of a change of control, or the EVP's

         release or other separation from service, such amount or benefit will

         not be payable or distributable to the EVP by reason of such

         circumstance unless (i) the circumstances giving rise to such change of

         control or release or other separation from service meet any

         description or definition of "change in control event" or "separation

         from service", as the case may be, in Section 409A of the Code and

         applicable regulations (without giving effect to any elective

         provisions that may be available under such definition), or (ii) the

         payment or distribution of such amount or benefit would be exempt from

         the application of Section 409A of the Code by reason of the short-term

         deferral exemption or otherwise. This provision does not prohibit the

         vesting of any amount upon a change of control or separation from

         service, however defined. If this provision prevents the payment or

         distribution of any amount or benefit, such payment or distribution

         shall be made on the next earliest payment or distribution date or

         event specified in the policy that is permissible under Section 409A.

 

<PAGE>

 

         (c) Medical Coverage. To the extent that any portion of the

         post-termination medical and dental benefits under this policy is

         provided pursuant to a self-insured arrangement as defined in Code

         Section 105 or is otherwise taxable, or to the extent that any premium

         payments made or reimbursed by WSFS for such coverage are taxable, then

         such coverage and such payments or reimbursements shall be subject to

         the following conditions if and to the extent they constitute deferred

         compensation subject to Section 409A of the Code: (i) the amount of

         benefits to be provided in one taxable year shall not affect the amount

         of benefits to be provided in any other taxable year; (ii) the

         reimbursement of an eligible taxable expense shall be made no later

         than the end of the year after the year in which the expense was

         incurred; and (iii) the right to benefits or payment or reimbursement

         of premiums shall not be subject to liquidation or exchange for another

         benefit.

 

         (d) Outplacement Expenses. If the provision of or reimbursement for

         professional level outplacement pursuant to this policy are includible

         in the EVP's federal gross taxable income, the amount of such expenses

         provided or reimbursable in any one calendar year shall not affect the

         amount provided or reimbursable in any other calendar year, and the

         reimbursement of an eligible expense must be made no later than

         December 31 of the year after the year in which the expense was

         incurred. The EVP's rights to payment or reimbursement of outplacement

         expenses pursuant to this policy shall expire at the end of the first

         year after the date of release. No right of the EVP to the provision or

         reimbursement of outplacement expenses under this policy shall be

         subject to liquidation or exchange for another benefit.

 

         (e) Treatment of Installment Payments. Each payment of severance

         benefits under this policy, including, without limitation, each

         installment payment and each payment or reimbursement of premiums for

         continued medical or dental coverage, shall be considered a separate

         payment, as described in Treas. Reg. Section 1.409A-2(b)(2), for

         purposes of Section 409A of the Code.

 

         (f) Release of Claims. To the extent that the payment of severance or

         other benefits under this policy is dependent upon the EVP having

         delivered a release form, such release shall have been signed within 45

         days after the EVP's date of termination and such release shall not

         have been revoked within such time period.

 

         (g) Six-Month Delay in Certain Circumstances.. If any amount or benefit

         that would constitute non-exempt "deferred compensation" for purposes

         of Section 409A of the Code would otherwise be payable or distributable

         under this policy by reason of the EVP's separation from service during

         a period in which he or she is a "Specified Employee" of WSFS (as

         defined below), then payment or commencement of such non-exempt amounts

         or benefits shall be delayed until the earlier of the EVP's death or

         the first day of the seventh month following the EVP's separation from

         service. For purposes of this policy, the term "Specified Employee" has

         the meaning given such term in Code Section 409A and the final

         regulations thereunder, provided, however, that, as permitted in such

         final regulations, WSFS's Specified Employees and its application of

         the six-month delay rule of Code Section 409A(a)(2)(B)(i) shall be

 

 

                                      -2-

<PAGE>

 

         determined in accordance with rules adopted by the Board or any

         committee of the Board, which shall be applied consistently with

         respect to all nonqualified deferred compensation arrangements of WSFS,

         including this policy."

 

 

         IN WITNESS WHEREOF, the undersigned, being a duly authorized officer of

WSFS Financial Corporation, has executed this instrument for and on behalf of

the Company to be effective as of the date and time indicated above.

 

                           WSFS FINANCIAL CORPORATION

 

 

                           By:_______________________

 

 

 

 

</TEXT>

</DOCUMENT>