Exhibit 10(I)
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT was originally made effective as of the lst day
of January 2000 (the "Effective Date"), and is hereby amended and restated as of
December 15, 2005 by and between Parkvale Financial Corporation (the
"Corporation"), a Pennsylvania-chartered corporation, Parkvale Savings Bank (the
"Bank"), a Pennsylvania-chartered savings bank and a wholly owned subsidiary of
the Corporation, and Xxxxxx X. XxXxxxxx, Xx. (the "Executive").
WITNESSETH
WHEREAS, the Corporation and the Bank (collectively, the "Employers")
desire to retain the services of the Executive on the terms and conditions set
forth herein and, for purpose of effecting the same, the Board of Directors of
each of the Employers has approved this Employment Agreement and authorized its
execution and delivery on behalf of the Employers to the Executive;
WHEREAS, the Executive has been with the Bank since December 1, 1984 and
with the Corporation since its formation; is currently employed as the President
and Chief Executive Officer and member of the Board of Directors of each of the
Employers; is a highly experienced and knowledgeable executive officer of the
Employers; and is important and essential to the operation and development of
the Employers;
WHEREAS, the Employers consider the establishment and maintenance of
knowledgeable and vital management to be part of their overall corporate
strategy and to be essential to protecting and enhancing the best interest of
the Employers and their stockholders; and
WHEREAS, the Employers consider the continued services of the Executive to
be in the best interests of the Employers and they desire to induce the
Executive to remain in their employ on an impartial and objective basis and
without distraction or conflict of interest in the event of any attempt to
obtain control of the Employers.
AGREEMENT:
NOW, THEREFORE, intending to be legally bound hereby and in consideration
of the mutual covenants and agreements herein contained, the parties agree and
contract as follows:
1. EMPLOYMENT. The Employers hereby employ the Executive, and the Executive
hereby accepts such employment, on the terms and conditions set forth in this
Agreement.
2. DEFINITIONS. The following words and terms shall have the meanings set
forth below for the purposes of this Agreement:
(A) BASE SALARY. "Base Salary" shall have the meaning set forth in Section
5(a) hereof.
(B) CAUSE. Termination of the Executive's employment for "Cause" shall mean
termination because (i) the Executive intentionally engages in dishonest conduct
in connection with his performance of services for the Corporation or the Bank
resulting in his conviction of a felony; (ii) the Executive is convicted of, or
pleads guilty or nolo contendere to, a felony or any crime involving moral
turpitude; (iii) the Executive willfully fails or refuses to perform his duties
under this Agreement and fails to cure such breach within fifteen (15) days
following written notice thereof from the Corporation or the Bank; (iv) the
Executive breaches his fiduciary duties to the Corporation or the Bank for
personal profit; or (v) the Executive willfully breaches or violates any law,
rule or regulation (other than traffic violations or similar offenses), or final
cease and desist order in connection with his performance of services for the
Corporation or the Bank, and fails to cure such breach or violation within
fifteen (15) days following written notice thereof from the Corporation or the
Bank. For purposes of this section, no act or failure to act on the part of the
Executive shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Corporation or
the Bank. Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Boards or based upon the written advice of
counsel for the Corporation or the Bank shall be conclusively presumed to be
done, or omitted to be done, by the Executive in good faith and in the best
interests of the Corporation or the Bank. Notwithstanding the foregoing, the
Executive shall not be deemed to have been terminated for Cause without (I)
reasonable written notice to the Executive setting forth the reasons for the
Employers' intention to terminate for Cause, (ii) an opportunity for the
Executive, together with his counsel, to be heard before the Boards of Directors
of the Employers, and (iii) thereafter delivery to the Executive of a Notice of
Termination from the Boards of Directors of the Employers finding that, in the
good faith opinion of such Boards upon vote of at least 75% of the members of
each Board, the Executive was guilty of conduct set forth above.
(C) CHANGE IN CONTROL OF THE CORPORATION. "Change in Control of the
Corporation" 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 as provided under Section
409A of the Code, as amended from time to time, and any Internal Revenue Service
guidance, including Notice 2005-1, and regulations issued in connection with
Section 409A of the Code.
(D) CODE. "Code" shall mean the Internal Revenue Code of 1986, as amended.
(E) DATE OF TERMINATION. "Date of Termination" shall mean (i) if the
Executive's employment is terminated for Cause, the date on which the Notice of
Termination is given, and (ii) if the Executive's employment is terminated for
any other reason, the date specified in the Notice of Termination.
(F) DISABILITY. Termination by the Employers of the Executive's employment
based on "Disability" shall mean termination because the Executive: (i) is
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
-2-
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 Employers.
(G) FDIC. "FDIC" shall mean the Federal Deposit Insurance Corporation.
(H) GOOD REASON. Termination by the Executive of the Executive's employment
for "Good Reason" shall mean termination by the Executive of his employment
hereunder under any of the following circumstances, the occurrence of any of
which shall be deemed a breach of this Agreement by the Employers:
(I) without the Executive's express written consent, the failure to
elect or to re-elect or to appoint or to re-appoint the Executive
to the offices of President and Chief Executive Officer and a
director of the Employers or a material adverse change made by
the Employers in the Executive's functions, duties or
responsibilities as President and Chief Executive Officer of the
Employers (except in the event the Executive's employment is
terminated for Cause, Disability, Retirement or death);
(ii) without the Executive's express written consent, a reduction by
the Employers in the Executive's Base Salary as the same may be
increased from time to time or, except to the extent permitted by
Section 5(b) hereof, a reduction in the package of fringe
benefits provided to the Executive, taken as a whole;
(iii) The principal executive office of the Employers is relocated
outside of the Pittsburgh, Pennsylvania area or, without the
Executive's express written consent, the Employers require the
Executive to be based anywhere other than an area in which the
Employers' principal executive office is located, except for
required travel on business of the Employers to an extent
substantially consistent with the Executive's present business
travel obligations;
(iv) Any purported termination of the Executive's employment for
Cause, Disability or Retirement which is not effected pursuant to
a Notice of Termination satisfying the requirements of paragraph
(j) below;
(v) The Employers shall fail to observe or perform any covenant or
agreement contained in this Agreement to be observed or performed
by the Employers;
-3-
(vi) The failure by the Employers to obtain the assumption of and
agreement to perform this Agreement by any successor as
contemplated in Section 12 hereof; or
(vii) A Change in Control of the Corporation occurs.
(I) IRS. IRS shall mean the Internal Revenue Service.
(J) NOTICE OF TERMINATION. Any purported termination of the Executive's
employment by the Employers for any reason, including without limitation for
Cause, Disability or Retirement, or by the Executive for any reason, including
without limitation for Good Reason, shall be communicated by a written "Notice
of Termination" to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a dated notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated,
(iii) specifies a Date of Termination, which shall be not less than thirty (30)
nor more than ninety (90) days after such Notice of Termination is given, except
in the case of the Employers' termination of Executive's employment for Cause,
which shall be effective immediately; and (iv) is given in the manner specified
in Section 13 hereof.
(K) PARACHUTE PAYMENT. The term "Parachute Payment" has the meaning as set
forth in Section 280G of the Code and applicable Treasury regulations.
(L) RETIREMENT. Termination by the Employers of the Executive's employment
based on "Retirement" shall mean voluntary termination by the Executive in
accordance with the Employers' retirement policies, including early retirement,
generally applicable to their salaried employees.
3. POSITION AND DUTIES. During the term of this Agreement, the Executive
agrees to serve as the President and Chief Executive Officer and a member of the
Board of Directors of each of the Employers and shall perform such managerial
duties and responsibilities for the Employers as the Boards of Directors of the
Employers may direct in accordance with the respective bylaws of the Employers,
which duties and responsibilities shall be of substantially the same character
as or equivalent character to those required by the Executive's position on the
Effective Date. Throughout the term of this Agreement, and except for illness,
vacation periods and leaves of absence granted by the Employers (if any), the
Executive shall devote all his business time, attention, skill and efforts to
the faithful performance of his duties hereunder.
4. TERM OF EMPLOYMENT. Unless extended as provided in this Section 4, this
Agreement shall terminate five years after the Effective Date. Prior to the
first anniversary of the Effective Date and each annual anniversary thereafter,
the Boards of Directors of the Employers shall consider, review (with
appropriate corporate documentation thereof, and taking into account all
relevant factors, including the Executive's performance) and, if appropriate,
explicitly approve a one-year extension of the remaining term of this Agreement.
The term of this Agreement shall continue
-4-
to extend each year if the Boards of Directors so approve such extension unless
the Executive gives written notice to the Employers of the Executive's election
not to extend the term, with such notice to be given not less than 30 days prior
to any such anniversary date. If any party gives timely notice that the term
will not be extended as of any annual anniversary date, then this Agreement
shall terminate at the conclusion of its remaining term. References herein to
the term of this Agreement shall refer both to the initial term and successive
terms. The last day of the term of this Agreement, as from time to time
extended, is hereinafter referred to as the "Expiration Date."
5. COMPENSATION AND BENEFITS.
(a) The Employers shall compensate and pay the Executive for his services
during the term of this Agreement a minimum salary of $350,000 per year as of
the date of restatement of this Agreement, which may be increased from time to
time in such amounts as may be determined by the Boards of Directors of the
Employers and may not be decreased without the Executive's express written
consent (hereinafter referred to as the Executive's "Base Salary"). Such salary
shall be payable in semi-monthly installments or in such other manner as
determined in accordance with the Employers' policies. In addition, the
Executive may receive bonus payments when, as and if determined by the Boards of
Directors of the Employers.
(b) During the term of this Agreement, the Executive shall be entitled to
participate in and receive the benefits of all of the Employers' normal employee
benefit plans and arrangements in effect from time to time, including without
limitation the following: any pension or other retirement benefit plan; profit
sharing plan; stock option plans; employee stock ownership plan; medical, dental
(if any) and hospitalization coverage (family coverage); travel accident
insurance; long-term disability income insurance; group life insurance; and
thrift plans. The Employers shall not make any changes in such plans, benefits
or privileges which would adversely affect the Executive's rights or benefits
thereunder, unless such change does not result in an overall reduction in the
level of benefits to the Executive below the level of benefits provided to the
Executive as of the Effective Date. Nothing paid to the Executive under any plan
or arrangement presently in effect or made available in the future shall be
deemed to be in lieu of the salary payable to the Executive pursuant to Section
5(a) hereof.
(c) During the term of this Agreement, the Executive shall be entitled to
paid annual vacation in accordance with the policies as established from time to
time by the Board of Directors of the Employers, provided, however, that in no
event shall the amount of annual vacation be less than six weeks per annum. The
paid vacation time shall be taken at such times as the Executive elects in his
discretion, and the Executive may accumulate unused vacation time from one year
to the next, unless otherwise limited by the Boards of Directors of the
Employers. The Executive shall also be entitled to all paid holidays provided by
the Employers.
-5-
(d) During the term of this Agreement, in keeping with past practices, the
Employers shall continue to provide the Executive with an automobile leased or
purchased by the Employers for the Executive. The Employers shall be responsible
and shall pay for all costs of insurance coverage, repairs, maintenance and
other incidental expenses, including license, fuel and oil. The Employers shall
provide the Executive with a replacement automobile of a similar type as
selected by the Executive at approximately the time that his present automobile
reaches three years of age and approximately every three years thereafter, upon
the same terms and conditions.
(e) During the term of this Agreement, in keeping with past practices, the
Employers shall pay the Executive's dues for membership in a country club
located in the Pittsburgh metropolitan area, which country club the Executive
has the right to choose.
(f) In the event of the Executive's death during the term of this
Agreement, the Employers shall pay to the Executive's spouse, estate, legal
representative or other named beneficiaries (as directed by the Executive in
writing) on a semi-monthly basis the Executive's Base Salary at the rate in
effect at the time of the Executive's death for a period of one year from the
date of death and, in addition, the Employers shall continue to provide medical,
dental (if any) and hospitalization coverage (family coverage if there are
dependents) until the semi-monthly payments cease.
(g) In the event of termination by the Employers of the Executive's
employment based on Disability (as defined herein), the Employers shall pay the
Executive a disability benefit which is equal to the Base Salary and benefits
provided in Sections 5(a), (b), (d) and (e) hereof, as the same may have been
increased from time to time, to the Executive at the commencement of the
Executive's total disability, reduced by the sum of (i) the amount of any
benefits to which the Executive may be entitled with respect to the same period
under any disability plan and (ii) the disability benefits payable under any
government regulated plan, including workers' compensation benefits. Payment of
such disability benefit shall commence with the week coincident with the
termination of the Executive's employment under this Agreement and shall
continue until the earlier of the Expiration Date or the Executive's death.
During any period the Executive shall be entitled to receive disability payments
from the Employers, to the extent that he is physically and mentally able to do
so, he shall furnish information and assistance to the Employers and, in
addition, upon reasonable request in writing from time to time, he shall make
himself available to the Employers to undertake reasonable assignments with the
dignity, importance, and scope of his prior position and his physical and mental
health.
6. EXPENSES. The Employers shall reimburse the Executive or otherwise
provide for or pay for all reasonable expenses incurred by the Executive in
furtherance of or in connection with the business of the Employers, including,
but not by way of limitation, automobile and traveling expenses, and all
reasonable entertainment expenses (whether incurred at the Executive's
residence, while traveling or otherwise), subject to such reasonable
documentation and other limitations as may be established by the Boards of
Directors of the Employers. If such expenses are paid in the first instance by
the Executive, the Employers shall reimburse the Executive therefor.
-6-
7. TERMINATION.
(a) The Employers shall have the right, at any time upon prior Notice of
Termination, to terminate the Executive's employment hereunder for any reason,
including without limitation termination for Cause, Disability or Retirement,
and the Executive shall have the right, upon prior Notice of Termination, to
terminate his employment hereunder for any reason.
(b) In the event that (i) the Executive's employment is terminated by the
Employers for Cause, Disability or Retirement or in the event of the Executive's
death, or (ii) the Executive terminates his employment hereunder other than for
Good Reason, the Executive shall have no right pursuant to this Agreement to
compensation or other benefits for any period after the applicable Date of
Termination other than as enumerated in Sections 5(f) and 5(g) of this
Agreement.
(c) In the event that (i) the Executive's employment is terminated by the
Employers for other than Cause, Disability, Retirement or the Executive's death
or (ii) such employment is terminated by the Executive (a) due to a breach of
this Agreement by the Employers, which breach has not been cured within fifteen
(15) days after a written notice of non-compliance has been given by the
Executive to the Employers, or (b) for any other Good Reason, then the Employers
shall:
(A) pay to the Executive, in a lump sum cash payment within five
business days of the date of termination, a cash severance amount
equal to 2.99 multiplied by the sum of the following: (i) the
Executive's then current Base Salary per annum, (ii) the highest
incentive compensation or bonus paid to the Executive during the three
calendar years preceding the year in which the termination of
employment occurs, including any amounts deferred by the Executive,
(iii) the average of the Employers' contributions to the Executive's
accounts under the Employers' 401(k) Plan, Executive Deferred
Compensation Plan (excluding any elective deferrals by the Executive),
Employee Stock Ownership Plan and Supplemental Executive Benefit Plan
for the three calendar years preceding the year in which the
termination of employment occurs, and (iv) the average of all other
components of the Executive's taxable income reported in Box 1 of Form
W-2 from the Employers for the three calendar years preceding the year
in which the termination of employment occurs, except that any items
of income which are deferred in one year and subsequently taken into
income in a subsequent year shall be excluded in the year taken into
income for purposes of determining the Executive's taxable income for
such year.
(B) maintain and provide for a period ending on the Expiration Date in
effect prior to the Notice of Termination, at no cost to the
Executive, the Executive's continued participation in all life,
disability and medical insurance plans and other employee benefit
plans, programs and arrangements in which the Executive was entitled
to participate immediately prior to the Date of Termination (including
the use of an automobile and club dues but excluding benefits covered
by subsection (A)
-7-
above and excluding stock benefit plans of the Employers), provided
that in the event that the Executive's participation in any plan,
program or arrangement as provided in this subparagraph (B) is barred,
or during such period any such plan, program or arrangement is
discontinued or the benefits thereunder are materially reduced or such
benefits are less than the benefits provided to the Executive
immediately prior to his termination of employment with the Employers,
the Employers shall arrange to provide the Executive with benefits
which are substantially similar to those which the Executive was
entitled to receive under such plans, programs and arrangements
immediately prior to the Date of Termination; and provided further,
that if the provision of any of the benefits covered by this Section
7(c)(B) would trigger the 20% excise tax and interest penalties under
Section 409A of the Code either due to the nature of such benefit or
the length of time it is being provided, then the benefit(s) that
would trigger such tax and interest penalties due to the nature of the
benefit shall not be provided at all and the benefit(s) that would
trigger the tax and interest penalties if provided beyond the "limited
period of time" set forth in the regulations under Section 409A shall
not be provided beyond such limited period of time (collectively, the
"Excluded Benefits"), and in lieu of the Excluded Benefits the
Employers shall pay to the Executive, in a lump sum within ten
business days following termination of employment or within ten
business days after such determination should it occur after
termination of employment, a cash amount equal to the cost to the
Employers of providing the Excluded Benefits.
8. CERTAIN SUPPLEMENTAL PAYMENTS BY THE CORPORATION.
(a) In the event it is determined that part or all of the compensation and
benefits to be paid to the Executive, whether or not payable hereunder, (i)
constitute "parachute payments" under Section 280G of the Code (the "Payments"),
and (ii) exceed one hundred and five percent (105%) of three times the
Executive's Base Amount, then the Corporation, on or before the date for payment
of such excise tax, shall pay to or on behalf of the Executive, in a lump sum,
an amount (the "Gross-Up Amount") such that, after payment of all federal, state
and local income or employment-related tax (including Social Security and
Medicare taxes, and reflecting the phase-out of deductions and the Executive's
ability to deduct certain of such taxes) and any additional excise tax under
Section 4999 of the Code in respect of the Gross-Up Amount payment, the
Executive will be fully reimbursed for the amount of such excise tax. If the
Payments equal three times the Executive's Base Amount or exceed three times the
Executive's Base Amount, but by an amount less than five percent (5%) of three
times the Base Amount, the cash payments shall be reduced by the least amount
necessary to bring such Payments below three times the Executive's Base Amount.
As used in this Agreement, "Base Amount" means an amount equal to the
Executive's Annualized Includable Compensation for the Base Period as defined in
Sections 280G(d)(1) and (2) of the Code.
(b) The determination of the Parachute Amount, the Base Amount and the
Gross-Up Amount, as well as any other calculations necessary to implement this
Section 8, shall be made
-8-
by Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P., unless the Executive and the
Corporation agree otherwise. Such firm's fee shall be paid by the Corporation.
(c) As promptly as practicable following such determination and the
elections hereunder, the Corporation shall pay to or distribute to or for the
benefit of the Executive such amounts as are then due to the Executive under
this Agreement and shall promptly pay to or distribute for the benefit of the
Executive in the future such amounts as become due to the Executive under this
Agreement.
(d) As a result of the uncertainty in the application of Section 280G of
the Code at the time of an initial determination hereunder, it is possible that
payments will not have been made by the Corporation which should have been made
under clause (a) of this Section 8 ("Underpayment"). In the event that there is
a final determination by the Internal Revenue Service, or a final determination
by a court of competent jurisdiction, that an Underpayment has been made and the
Executive thereafter is required to make any payment of an excise tax, income
tax, any interest or penalty, the firm selected under clause (b) above shall
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Corporation to or for the benefit of
the Executive. If and to the extent that the Executive receives any tax refund
from the Internal Revenue Service that is attributable to payments by the
Corporation pursuant to this Section 8 of amounts in excess of the actual
Gross-Up Amount as finally determined by the Internal Revenue Service or a court
of competent jurisdiction ("Overpayment"), the Executive shall promptly pay to
the Corporation the amount of such refund that is attributable to the
Overpayment (together with any interest paid or credited thereon after taxes
applicable thereto); provided, however, the Executive shall not have any
obligation to pay the Corporation any amount pursuant to this Section 8(d) if
and to the extent that any such obligation would cause the arrangement to be
treated as a loan or extension of credit prohibited by applicable law.
9. MITIGATION; EXCLUSIVITY OF BENEFITS.
(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.
(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.
10. WITHHOLDING. All payments required to be made by the Employers
hereunder to the Executive shall be subject to the withholding of such amounts,
if any, relating to tax and other payroll deductions as the Employers may
reasonably determine should be withheld pursuant to any applicable law or
regulation.
-9-
11. RESTRICTIVE COVENANT. During the Executive's employment hereunder, the
Employers, in addition to all other remedies provided herein, shall be entitled
to an injunction restraining the Executive from owning, managing, operating and
controlling, being employed by or participating in or being in any way so
connected with any business similar to the business of the Employers within the
Employers' market areas. Market areas shall include the Pennsylvania counties of
Allegheny, Armstrong, Beaver, Butler, Fayette, Washington and Xxxxxxxxxxxx,
together with any other counties within Pennsylvania, Ohio or West Virginia in
which the Bank has an office. The business of the Employers shall mean any
business in which depositors are covered by FDIC insurance. In the event of any
actual or threatened breach by the Executive of the provisions of this
paragraph, the Employers shall be entitled to an injunction restraining the
Executive from owning, managing, operating and controlling, being employed by or
participating in or being in any way connected with any business similar to the
business of the Employers covered by FDIC insurance. For purposes of this
Agreement, "owning" shall not include the ownership of 1% or less of the stock
of a public corporation. Nothing herein stated shall be construed as prohibiting
the Employers from pursuing any other remedies available to them for such breach
or threatened breach, including the recovery of damages. This Section 11 shall
terminate and be of no force and effect in the event the Executive terminates
his employment for Good Reason or the Employers terminate the Executive's
employment for other than Cause.
12. SUCCESSORS; BINDING AGREEMENT.
(a) The Employers will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Employers to expressly assume and agree (by
agreement in form and substance satisfactory to the Executive) to perform this
Agreement in the same manner and to the same extent that the Employers would be
required to perform it if no such succession had taken place. Failure of the
Employers to obtain such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle the Executive
to compensation from the Employers in the same amount and on the same terms as
he would be entitled to hereunder if he terminated his employment for Good
Reason, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed, without further
notice, the date of termination.
(b) This Agreement and all rights of the Executive hereunder shall inure to
the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive dies during the term of this Agreement,
the benefits specified in Section 5(f) of this Agreement shall be paid to the
Executive's designated beneficiaries.
13. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below, or to such other address as any party may
have
-10-
furnished to the other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
To the Employers: Parkvale Financial Corporation
Parkvale Savings Bank
0000 Xxxxxxx Xxxx Xxxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxx 00000
To the Executive: Xxxxxx X. XxXxxxxx, Xx.
At the address last appearing on the
personnel records of the Employers
14. AMENDMENT; WAIVER. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and such officer or officers as may be
specifically designated by the Board of Directors of the Employers to sign on
its behalf; provided, however, that if the Employers determine, after a review
of the final regulations issued under Section 409A of the Code and all
applicable Internal Revenue Service guidance, that this Agreement should be
further amended to avoid triggering the tax and interest penalties imposed by
Section 409A of the Code, the Employers may amend this Agreement to the extent
necessary to avoid triggering the tax and interest penalties imposed by Section
409A of the Code. No waiver by any party hereto at any time of any breach by any
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
15. GOVERNING LAW. This Agreement has been executed and delivered in the
Commonwealth of Pennsylvania and its validity, interpretation, performance and
enforcement shall be governed by and construed in accordance with the laws
thereof applicable to contracts executed and to be wholly performed in
Pennsylvania, except to the extent that federal law controls.
16. NATURE OF OBLIGATIONS. 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.
17. INTERPRETATION. If any provision of this Agreement shall be the subject
of a dispute between the Employers and the Executive and a court or arbitrator
to which such dispute has been brought shall be unable to resolve which of two
reasonable interpretations of such provision is the proper interpretation
thereof, then the interpretation most favorable to the Executive shall control.
18. HEADINGS. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of the terms of this Agreement.
-11-
19. VALIDITY. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provisions of this Agreement, which shall remain in full force and
effect.
20. PRIOR AGREEMENTS. This Agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous agreements and understandings and any
and all prior employment agreements between the Employers and the Executive.
21. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
22. REGULATORY PROHIBITION. Notwithstanding any other provision of this
Agreement to the contrary, any payments made to the Executive pursuant to this
Agreement, or otherwise, are subject to and conditioned upon their compliance
with Section 18(k) of the FDIA (12 U.S.C. 1828(k)) and the regulations
promulgated thereunder, including 12 C.F.R. Part 359.
-12-
IN WITNESS WHEREOF, this Agreement has been executed as of the date of the
restatement of this Agreement.
Attest: PARKVALE FINANCIAL CORPORATION
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------- ------------------------------------
Xxxx X. Xxxxxx, Corporate Secretary Xxxxxx X. Xxxxxxxxx
Chairman of the Board
Attest: PARKVALE SAVINGS BANK
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------- ------------------------------------
Xxxx X. Xxxxxx, Corporate Secretary Xxxxxx X. Xxxxxxxxx
Chairman of the Board
Witness: XXXXXX X. XXXXXXXX, XX.
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. XxXxxxxx, Xx.
------------------------------------- ------------------------------------
Xxxx X. Xxxxxx, Corporate Secretary Xxxxxx X. XxXxxxxx, Xx.,
Individually
-13-
