AMENDMENT TO
SECOND
AMENDED AND RESTATED
EMPLOYMENT CONTRACT
This Amendment (the "Amendment") to the Second Amended and Restated
Employment Contract (the "Employment Contract") is made and entered as of this
21st day of May, 2001 by and among XXXXX X. XXXXXXX (the "Executive"), FIRST
NATIONAL BANK OF HERMINIE, a national banking association ("FNH Bank"), FNH
CORPORATION, a Pennsylvania corporation and the parent corporation of FNH Bank
("FNH"), PROMISTAR FINANCIAL CORPORATION, a Pennsylvania corporation
("Promistar") and PROMISTAR BANK, a national banking association ("Promistar
Bank");
WHEREAS, Promistar and FNH are parties to an Agreement and Plan of
Reorganization dated as of February 24, 2001 (the "Merger Agreement"), which
contemplates that FNH would merge with and into Promistar and FNH Bank would
merge with and into Promistar Bank (collectively, the "Mergers");
WHEREAS, the parties to this Amendment are parties to an Employment and
Severance Agreement dated as of the date hereof (the "Employment and Severance
Agreement") which will be effective as of the Effective Time (as defined in the
Merger Agreement) and contemplates an amendment to the Employment Contract; and
WHEREAS, the parties hereby intend to evidence the amendment to the
Employment Contract contemplated by the Employment and Severance Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth in
the Employment and Severance Agreement and as hereinafter set forth, the parties
hereto agree as follows:
1. TERMINATION OF THIS AMENDMENT TO THE EMPLOYMENT CONTRACT.
If the Effective Time does not occur, this Amendment to the Employment
Contract shall be without force and effect and shall be terminated in its
entirety without action by any party upon termination of the Merger Agreement.
Without limiting the generality of the foregoing, if the Effective Time does not
occur, the Mergers will not occur, the Executive shall retain all rights he has
or may have with respect to FNH Bank under the Employment Contract and neither
Promistar nor Promistar Bank will have any obligations to the Executive under
this Amendment to Employment Contract.
2. AMENDMENT TO SECTION 12A OF EMPLOYMENT AGREEMENT.
Section 12A of the Employment Contract is hereby amended in its
entirety to read as follows:
"A. If the Bank merges with and into Promistar Bank, a national banking
association ("Promistar Bank"), Promistar Bank, or its parent corporation,
Promistar Financial Corporation, a Pennsylvania corporation, shall pay the
Executive, in a single lump sum within five (5) business days of the
consummation of the merger of the Bank into Promistar Bank, the amount (after
giving effect to Section 20 of this Employment Contract) determined under the
applicable of (1) or (2) below:
1. if, at or before the time of the consummation of the merger
of the Bank with and into Promistar Bank, the shareholders of FNH
Corporation, a Pennsylvania corporation and the parent corporation of
the Bank ("FNH"), approve the elimination of offsets under Section IV
of the Executive Salary Continuation Agreement between the Executive
and the Bank as contemplated under Section 6 of that certain Employment
and Severance Agreement by and among the Executive, the Bank, FNH,
Promistar and Promistar Bank dated as of May __, 2001 ("Shareholder
Approval"), an amount equal to 36 times his monthly base salary at the
highest rate in effect at any time during the term of this Agreement;
or
2. if Shareholder Approval is not received, $821,000, if the
automobile otherwise described in Section 4(c) of the Employment and
Severance Agreement is transferred by the Bank prior to the Effective
Time in a transfer not part of a parachute payment as defined in
Section 280G(b)(2) of the Internal Revenue Code 0f 1986, as amended, or
$778,000 if the transfer of such automobile is at the Effective Time or
otherwise as part of a parachute payment.
3. AMENDMENT TO SECTION 13 OF THE EMPLOYMENT AGREEMENT.
Section 13 of the Employment Agreement is amended by striking the
second sentence thereof and substituting the following sentence:
"At the time of the payment described in Section 12A of this
Agreement, as amended, Promistar Bank shall take such steps as are
necessary to cause the title to the automobile owned by the Bank and
used by the Executive to be placed in the name of the Executive, free
and clear of encumbrances."
4. NEW SECTION 23.
A new Section 23 is hereby added to the Employment Agreement to provide
as follows:
"23. NON-DUPLICATION. No provision of this Employment
Agreement shall be read to provide for a duplication of any amount or
benefit to be paid the Executive if such payment would be cause a
duplication of payments or benefits due the Executive under the
Employment and Severance Agreement by and among the parties to the
Amendment to Second Amended and Restated Employment Contract."
5. EFFECT ON OTHER PROVISIONS OF THE EMPLOYMENT CONTRACT.
Except as amended in this Amendment to Employment Contract, each other
provision of the Employment Contract shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to Second
Amended and Restated Employment Contract to be executed and delivered as of the
date first above written.
WITNESS: EXECUTIVE
/s/ Xxxxxx Xxxxxxxxx /s/ Xxxxx X. Xxxxxxx
------------------------------- ----------------------------------
Xxxxx X. Xxxxxxx
ATTEST: FIRST NATIONAL BANK OF HERMINIE
/s/ Xxxxxxx X. Xxxxx, Xx.
------------------------------- BY /s/ V. Xxxxx Xxxxxxx
-------------------------------
Title: Secretary of Board
ATTEST: FNH CORPORATION
/s/ Xxxxxxx X. Xxxxx, Xx.
------------------------------- BY /s/ Xxx X. Xxxxxx
-------------------------------
Title: Director
ATTEST: PROMISTAR FINANCIAL CORPORATION
/s/ Xxxxx X. Xxxxxx
------------------------------- BY /s/ Xxxx X. Xxxxxxxx
Assistant Secretary -------------------------------
Title: Chairman & CEO
ATTEST: PROMISTAR BANK
/s/ Xxxxx X. Xxxxxx
------------------------------- BY /s/ Xxxxxx X. Xxxxxxx
Assistant Secretary ------------------------------
Title: Chairman, President & C.O.O.
