AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT AMONG ESB FINANCIAL CORPORATION, ESB BANK AND __________________
Exhibit
10.3
[Form
for Group SVPs]
AMENDED
AND RESTATED CHANGE IN CONTROL AGREEMENT AMONG
ESB
FINANCIAL CORPORATION, ESB BANK
AND
__________________
This
AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT (this “Agreement”), dated as of
the 20th day of November 2007, is among ESB Financial Corporation (the
“Corporation”), ESB Bank, a Pennsylvania chartered savings bank and a wholly
owned subsidiary of the Corporation (the “Bank”), and _____________________ (the
“Executive”). Any reference to the “Employers” shall mean both the
Corporation and the Bank, and any reference to an “Employer” shall mean either
the Corporation or the Bank, as the context requires.
WHEREAS,
the Executive is presently an officer of the Employers, and the Executive
and
the Employers have previously entered into a change in control agreement
dated
November 21, 2006 (the “Prior Agreement”);
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(d) Code.
Code shall mean the Internal Revenue Code of 1986, as amended.
(i)
(A) a
material diminution in the Executive’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
Executive’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 Executive is required to report
immediately prior to the Change in Control,
(ii)
any
material breach of this Agreement by the Employers, or
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(iii)
any
material change in the geographic location at which the Executive 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
Executive must first provide written notice to the Employers within ninety
(90)
days of the initial existence of the condition, describing the existence
of such
condition, and the Employers shall thereafter have the right to remedy the
condition within thirty (30) days of the date the Employers received the
written
notice from the Executive. If the Employers remedy the condition
within such thirty (30) day cure period, then no Good Reason shall be deemed
to
exist with respect to such condition. If the Employers do not remedy
the condition within such thirty (30) day cure period, then the Executive
may
deliver a Notice of Termination for Good Reason at any time within sixty
(60)
days following the expiration of such cure period.
(a) pay
to the Executive, in a lump sum as of the Date of Termination, a cash amount
equal to 2.99 times the Executive’s Annual Compensation; and
(b) maintain
and provide for a period ending at the earlier of (i) thirty-six (36) months
after the Date of Termination or (ii) the date of the Executive’s full-time
employment by another employer (provided that the Executive is entitled under
the terms of such employment to benefits substantially similar to those
described in this subparagraph (b)), at no cost to the Executive, the
Executive’s continued participation in all group insurance, life insurance,
health and accident insurance, and disability insurance in which the Executive
was participating immediately prior to the Date of Termination; provided
that
any insurance premiums payable by the Employers or any successors pursuant
to
this Section 2(b) shall be payable at such times and in such amounts (except
that the Employers shall also pay any employee portion of the premiums) as
if
the Executive was still an employee of the Employers, 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 Employers in any
taxable
year shall not affect the amount of insurance premiums required to be paid
by
the Employers in any other taxable year; and provided further that if the
Executive’s participation in any group insurance plan is barred, the Employers
shall either arrange to provide the Executive with insurance benefits
substantially similar to those which the Executive was entitled to receive
under
such group insurance plan or, if such coverage cannot be obtained, pay a
lump
sum cash equivalency amount within thirty (30) days following the Date of
Termination based on the annualized rate of premiums being paid by the Employers
as of the Date of Termination; and
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(c) pay
to the Executive, in a lump sum as of the Date of Termination, a cash amount
equal to the projected cost to the Employers of providing benefits to the
Executive for a period of thirty-six (36) months pursuant to any other employee
benefit plans, programs or arrangements offered by the Employers in which
the
Executive was entitled to participate immediately prior to the Date of
Termination (other than retirement plans, stock compensation plans or cash
compensation plans of the Employers), with the projected cost to the Employers
to be based on the costs incurred for the calendar year immediately preceding
the year in which the Date of Termination occurs and with any automobile-related
costs to exclude any depreciation on Bank-owned automobiles.
(d) The
payments to the Executive hereunder shall be paid by the Corporation and
the
Bank in the same proportion as the time and services actually expended by
the
Executive on behalf of each respective Employer, and no payments shall be
duplicated.
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(a) The
Executive shall not be required to mitigate the amount of any benefits hereunder
by seeking other employment or otherwise, nor shall the amount of any such
benefits be reduced by any compensation earned by the Executive as a result
of
employment by another employer after the Date of Termination or otherwise,
except as set forth in Section 2(b) above.
(b) The
specific arrangements referred to herein are not intended to exclude any
other
benefits which may be available to the Executive upon a termination of
employment with the Employers pursuant to employee benefit plans of the
Employers or otherwise.
| To the Employers: | ESB Financial Corporation and ESB Bank | ||
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Xxxxxxxx Xxxxxx
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Xxxxxxx
Xxxx, Xxxxxxxxxxxx 00000
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| To the Executive: | |||
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At
the address last appearing on the
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personnel
records of the Employers
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9. Governing
Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the United States where applicable
and otherwise by the substantive laws of the Commonwealth of
Pennsylvania.
(a) Nothing
contained herein shall be deemed to create other than a terminable at will
employment relationship between the Employers and the Executive, and the
Employers may terminate the Executive’s employment at any time, subject to
providing any payments specified herein in accordance with the terms
hereof.
(b) Nothing
contained herein shall create or require the Employers to create a trust
of any
kind to fund any benefits which may be payable hereunder, and to the extent
that
the Executive acquires a right to receive benefits from the Employers hereunder,
such right shall be no greater than the right of any unsecured general creditor
of the Employers.
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(a) If
the Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the Employers’ affairs pursuant to notice served
under Section 8(e)(3) or Section 8(g)(1) of the Federal Deposit Insurance
Act
(“FDIA”)(12 U.S.C. §§1818(e)(3) and 1818(g)(1)), the Employers’ obligations
under this Agreement shall be suspended as of the date of service, unless
stayed
by appropriate proceedings. If the charges in the notice are dismissed, the
Employers may, in their discretion: (i) pay the Executive all or part of
the
compensation withheld while their obligations under this Agreement were
suspended, and (ii) reinstate (in whole or in part) any of their obligations
which were suspended.
(b) If
the Executive is removed from office and/or permanently prohibited from
participating in the conduct of the Employers’ affairs by an order issued under
Section 8(e)(4) or Section 8(g)(1) of the FDIA (12 U.S.C. §§1818(e)(4) and
(g)(1)), all obligations of the Employers under this Agreement shall terminate
as of the effective date of the order, but vested rights of the Executive
and
the Employers as of the date of termination shall not be affected.
(c) If
the Bank is in default, as defined in Section 3(x)(1) of the FDIA (12 U.S.C.
§1813(x)(1)), all obligations under this Agreement shall terminate as of the
date of default, but vested rights of the Executive and the Employers as
of the
date of termination shall not be affected.
(d) All
obligations under this Agreement shall be terminated pursuant to 12 C.F.R.
§563.39(b)(5), except to the extent that it is determined that continuation
of
the Agreement for the continued operation of the Employers is necessary:
(i) by
the Director of the OTS, or his/her designee, at the time the Federal Deposit
Insurance Corporation (“FDIC”) enters into an agreement to provide assistance to
or on behalf of the Bank under the authority contained in Section 13(c) of
the
FDIA (12 U.S.C. §1823(c)); or (ii) by the Director of the OTS, or his/her
designee, at the time the Director or his/her designee approves a supervisory
merger to resolve problems related to operation of the Bank or when the Bank
is
determined by the Director of the OTS to be in an unsafe or unsound condition,
but vested rights of the Executive and the Employers as of the date of
termination shall not be affected.
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| Attest: | ESB FINANCIAL CORPORATION | ||
| By: | |||
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Xxxxxxxxx
X. Xxxxxxxx
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President
and Chief Executive Officer
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| Attest: | ESB BANK | ||
| By: | |||
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Xxxxxxxxx
X. Xxxxxxxx
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President
and Chief Executive Officer
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| Attest: | |||
| By: | |||
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