Exhibit 10(h)
AMENDED AGREEMENT
AMENDED AGREEMENT, dated this 1st day of December 2002, between ESB
Bank, F.S.B. (the "Bank"), a federally chartered savings bank, and Xxxxxxxxx X.
Xxxxxxxx (the "Executive").
WITNESSETH
WHEREAS, the Executive is presently an officer of ESB Financial
Corporation (the "Corporation") and the Bank (together, the "Employers");
WHEREAS, the Employers desire to be ensured of the Executive's
continued active participation in the business of the Employers, and the Bank
desires to have this new Agreement supersede its current agreement with the
Executive dated December 1, 2001;
WHEREAS, in accordance with Section 310 of the Office of Thrift
Supervision ("OTS") Thrift Activities Handbook, the Corporation and the Bank
desire to enter into separate agreements with the Executive with respect to her
employment by each of the Employers; and
WHEREAS, in order to induce the Executive to remain in the employ of
the Employers and in consideration of the Executive's agreeing to remain in the
employ of the Employers, the parties desire to specify the severance benefits
which shall be due the Executive by the Bank in the event that her employment
with the Bank is terminated under specified circumstances;
NOW THEREFORE, in consideration of the mutual agreements herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereby agree as follows:
1. Definitions. The following words and terms shall have the
meanings set forth below for the purposes of this Agreement:
(a) Average Annual Compensation. The Executive's "Average Annual
Compensation" for purposes of this Agreement shall be deemed to mean the average
level of compensation paid to the Executive by the Employers or any subsidiary
thereof during the most recent five taxable years preceding the Date of
Termination and included in the Executive's gross income for tax purposes and
any income earned and deferred by the Executive pursuant to any plan or
arrangement of the Employers.
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(b) Base Salary. "Base Salary" shall have the meaning set forth in
Section 3(a) hereof.
(c) Cause. Termination of the Executive's employment for "Cause"
shall mean termination because of personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses) or final
cease-and-desist order or material breach of any provision of this Agreement.
(d) Change in Control of the Corporation. "Change in Control of the
Corporation" shall mean a change in control of a nature that would be required
to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended ("Exchange
Act"), or any successor thereto, whether or not the Corporation is registered
under the Exchange Act; provided that, without limitation, such a change in
control shall be deemed to have occurred if (i) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Corporation representing 25% or more of the
combined voting power of the Corporation's then outstanding securities; or (ii)
during any period of two consecutive years, individuals who at the beginning of
such period constitute the Board of Directors of the Corporation cease for any
reason to constitute at least a majority thereof unless the election, or the
nomination for election by stockholders, of each new director was approved by a
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period.
(e) Code. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(f) Date of Termination. "Date of Termination" shall mean (i) if the
Executive's employment is terminated for Cause or for Disability, the date
specified in the Notice of Termination, and (ii) if the Executive's employment
is terminated for any other reason, the date on which a Notice of Termination is
given or as specified in such Notice.
(g) Disability. Termination by the Bank of the Executive's employment
based on "Disability" shall mean termination because of any physical or mental
impairment which qualifies the Executive for disability benefits under the
applicable long-term disability plan maintained by the Employers or any
subsidiary or, if no such plan applies, which would qualify the Executive for
disability benefits under the Federal Social Security System.
(h) Good Reason. Termination by the Executive of the Executive's
employment for "Good Reason" shall mean termination by the Executive following a
Change in Control of the Corporation based on:
(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 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;
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(ii) Without the Executive's express written consent, a
reduction by either of 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
3(b) hereof, a reduction in the package of fringe benefits provided to the
Executive, taken as a whole;
(iii) The principal executive office of either of the Employers
is relocated outside of the Ellwood City, Pennsylvania area or, without the
Executive's express written consent, either of 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; or
(v) The failure by the Bank to obtain the assumption of and
agreement to perform this Agreement by any successor as contemplated in Section
9 hereof.
(i) IRS. IRS shall mean the Internal Revenue Service.
(j) Notice of Termination. Any purported termination of the
Executive's employment by the Bank 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 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 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 Bank's termination of Executive's employment
for Cause, which shall be effective immediately; and (iv) is given in the manner
specified in Section 10 hereof.
(k) Retirement. "Retirement" shall mean voluntary termination by the
Executive in accordance with the Employers' retirement policies, including early
retirement, generally applicable to their salaried employees.
2. Term of Employment.
(a) The Bank hereby employs the Executive as President and Chief
Executive Officer and the Executive hereby accepts said employment and agrees to
render such services to the Bank on the terms and conditions set forth in this
Agreement. The term of employment under this Agreement shall be for three years,
commencing on the date of this Agreement and, upon
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approval of the Board of Directors of the Bank, shall extend for an additional
year on each annual anniversary of the date of this Agreement such that at any
time the remaining term of this Agreement shall be from two to three years.
Prior to the first annual anniversary of the date of this Agreement and each
annual anniversary thereafter, the Board of Directors of the Bank shall consider
and review (with appropriate corporate documentation thereof, and after taking
into account all relevant factors, including the Executive's performance
hereunder) an extension of the term of this Agreement, and the term shall
continue to extend each year if the Board of Directors approves such extension
unless the Executive gives written notice to the Employers of the Executive's
election not to extend the term, with such written notice to be given not less
than thirty (30) days prior to any such anniversary date. If the Board of
Directors elects not to extend the term, it shall give written notice of such
decision to the Executive not less than thirty (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.
(b) During the term of this Agreement, the Executive shall perform
such executive services for the Bank as may be consistent with her titles and
from time to time assigned to her by the Bank's Board of Directors.
3. Compensation and Benefits.
(a) The Employers shall compensate and pay the Executive for her
services during the term of this Agreement at a minimum base salary of $327,200
per year ("Base Salary"), 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. In addition to
her Base Salary, the Executive shall be entitled to receive during the term of
this Agreement such bonus payments as may be 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 any pension or other
retirement benefit plan, profit sharing, stock option, employee stock ownership,
or other plans, benefits and privileges given to employees and executives of the
Employers, to the extent commensurate with her then duties and responsibilities,
as fixed by the Boards of Directors of the Employers. The Bank 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 occurs
pursuant to a program applicable to all executive officers of the Bank and does
not result in a proportionately greater adverse change in the rights of or
benefits to the Executive as compared with any other executive officer of the
Bank. 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 3(a) hereof.
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(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 Boards of Directors of the Employers, which shall in no
event be less than five weeks per annum. The Executive shall not be entitled to
receive any additional compensation from the Employers for failure to take a
vacation, nor shall the Executive be able to accumulate unused vacation time
from one year to the next, except to the extent authorized by the Boards of
Directors of the Employers.
(d) During the term of this Agreement, in keeping with past
practices, the Employers shall continue to provide the Executive with the
automobile she presently drives. 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.
(e) In the event the Executive's employment is terminated by the
Corporation for any reason other than Cause, the Employers shall provide
continued life, medical, dental and disability coverage substantially identical
to the coverage maintained by the Employers for the Executive immediately prior
to her termination. The medical and dental coverage shall continue until the
earlier of (a) the Executive's death or (b) the date on which the Executive is
entitled to receive benefits from a subsequent employer which are substantially
similar to the medical and dental coverage provided by the Corporation. The life
and disability coverage shall cease upon the expiration of the remaining term of
this Agreement. During the period that the Executive receives medical and dental
coverage and/or life and disability coverage, the Executive shall pay the
employee share of the costs of such coverages as if she was still an employee.
(f) In the event of the Executive's death during the term of this
Agreement, her spouse, estate, legal representative or named beneficiaries (as
directed by the Executive in writing) shall be paid on a monthly basis the
Executive's annual compensation from the Employers at the rate in effect at the
time of the Executive's death for the remainder of the term of this Agreement,
as well as the benefits specified in Section 3(e) hereof. In the event the
Executive is terminated due to Disability during the term of this Agreement, the
Executive shall be paid on a monthly basis (i) the Executive's annual
compensation from the Employers at the rate in effect at the time of termination
due to Disability for the remainder of the term of this Agreement, as well as
the benefits specified in Section 3(e) hereof, and (ii) upon the expiration of
the term of this Agreement, two-thirds (66.67%) of the Executive's Base Salary
at the time of termination due to Disability until the Executive reaches the
normal retirement age of 65; provided however, there shall be deducted from the
amounts paid the Executive pursuant to this Section 3(f), any amounts actually
paid to the Executive pursuant to any disability insurance or similar plan or
program which the Employers have instituted or may institute on behalf of the
Executive or its employees for the purpose of compensating employees in the
event of disabil ity, the Social Security Act, the Workers Compensation or
Occupational Disease Act, or any state disability benefit law.
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(g) The Executive's compensation, benefits and expenses 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.
4. 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 expenses described in
Section 3(d) hereof, 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.
5. Termination.
(a) The Bank 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 her employment hereunder for any reason.
(b) In the event that (i) the Executive's employment is terminated by
the Bank for Cause or (ii) the Executive terminates her employment hereunder
other than for Disability, Retirement, death or 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.
(c) In the event that the Executive's employment is terminated as a
result of Disability, Retirement or the Executive's death during the term of
this Agreement, the Executive shall have no right pursuant to this Agreement to
compensation or other benefits for any period after the applicable Date of
Termination, except as provided for in Sections 3(e) and 3(f) hereof.
(d) In the event that (i) the Executive's employment is terminated by
the Bank for other than Cause, Disability, Retirement or the Executive's death
or (ii) such employment is terminated by the Executive (a) due to a material
breach of this Agreement by the Bank, 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 Good Reason, then the Bank shall, subject
to the provisions of Section 6 hereof, if applicable
(A) pay to the Executive, in either thirty-six (36) equal monthly
installments beginning with the first business day of the month following the
Date of Termination or in a lump sum within five business days of the Date of
Termination (at the Executive's election), a cash severance amount equal to
three (3) times that portion of the Executive's Average Annual Compensation paid
by the Bank,
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(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, disability and other employee
benefit plans, programs and arrangements offered by the Corporation in which the
Executive was entitled to participate immediately prior to the Date of
Termination (other than stock option and restricted stock plans of the
Employers),
(C) if the Executive is still receiving medical and dental coverage
pursuant to Section 5(d)(B) above upon the expiration of thirty-six (36) months
after the Date of Termination, maintain and provide medical and dental coverage
for the Executive for a period ending at the earlier of (i) the Executive's
death or (ii) the date on which the Executive is entitled to receive benefits
from a subsequent employer which are substantially similar to the medical and
dental coverage provided by the Corporation. During the period that the
Executive receives medical and dental coverage pursuant to this Section 5(d)(C),
the Executive shall pay the employee share of the costs of such coverage as if
she was still an employee, and
(D) in the event that the Executive's participation in any plan,
program or arrangement as provided in subparagraph (B) or (C) of this Section
5(d) is barred, or during such period any such plan, program or arrangement is
discontinued or the benefits thereunder are materially reduced, the Corporation
shall arrange to provide the Executive with benefits substantially similar to
those which the Executive was entitled to receive under such plans, programs and
arrangements immediately prior to the Date of Termination.
6. Limitation of Benefits under Certain Circumstances. If the
payments and benefits pursuant to Section 5 hereof, either alone or together
with other payments and benefits which the Executive has the right to receive
from the Bank, would constitute a "parachute payment" under Section 280G of the
Code, the payments and benefits payable by the Bank pursuant to Section 5 hereof
shall be reduced, in the manner determined by the Executive, by the amount, if
any, which is the minimum necessary to result in no portion of the payments and
benefits payable by the Bank under Section 5 being non-deductible to the Bank
pursuant to Section 280G of the Code and subject to the excise tax imposed under
Section 4999 of the Code. The parties hereto agree that the payments and
benefits payable pursuant to this Agreement to the Executive upon termination
shall be limited to three times the Executive's Average Annual Compensation in
accordance with Section 310 of the OTS Thrift Activities Handbook. The
determination of any reduction in the payments and benefits to be made pursuant
to Section 5 shall be based upon the opinion of independent tax counsel selected
by the Bank's independent public accountants and paid by the Bank. Such counsel
shall be reasonably acceptable to the Bank and the Executive; shall promptly
prepare the foregoing opinion, but in no event later than thirty (30) days from
the Date of Termination; and may use such actuaries as such counsel deems
necessary or advisable for the purpose. Nothing contained herein shall result in
a reduction of any payments or benefits to which the Executive may be entitled
upon termination of
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employment under any circumstances other than as specified in this Section 6, or
a reduction in the payments and benefits specified in Section 5 below zero.
7. 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.
8. Withholding. All payments required to be made by the Bank
hereunder to the Executive shall be subject to the withholding of such amounts,
if any, relating to tax and other payroll deductions as the Bank may reasonably
determine should be withheld pursuant to any applicable law or regulation.
9. Assignability. The Bank may assign this Agreement and its rights
and obligations hereunder in whole, but not in part, to any corporation, bank or
other entity with or into which the Bank may hereafter merge or consolidate or
to which the Bank may transfer all or substantially all of its assets, if in any
such case said corporation, bank or other entity shall by operation of law or
expressly in writing assume all obligations of the Bank hereunder as fully as if
it had been originally made a party hereto, but may not otherwise assign this
Agreement or its rights and obligations hereunder. The Executive may not assign
or transfer this Agreement or any rights or obligations hereunder.
10. 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:
To the Bank: Secretary
ESB Bank, F.S.B.
000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxxxx 00000
To the Corporation: Secretary
ESB Financial Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxxxx 00000
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To the Executive: Xxxxxxxxx X. Xxxxxxxx
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
11. 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 Bank to sign on its
behalf. 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.
12. 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.
13. Nature of Obligations. Nothing contained herein shall create or
require the Bank 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 Bank hereunder, such right shall be no greater than
the right of any unsecured general creditor of the Bank.
14. 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 this Agreement.
15. Validity. The invalidity or unenforceability of any provision 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.
16. 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.
17. Regulatory Actions. The following provisions shall be applicable
to the parties to the extent that they are required to be included in employment
agreements between a savings bank and its employees pursuant to Section
563.39(b) of the Regulations Applicable to all Savings Associations, 12 C.F.R.
Section. 563.39(b), or any successor thereto, and shall be controlling in the
event of a conflict with any other provision of this Agreement, including
without limitation Section 5 hereof.
(a) If the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Bank's 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. Sections. 1818(e)(3) and 1818(g)(1)), the
Bank's obligations under this Agreement shall be suspended as of the date of
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service, unless stayed by appropriate proceedings. If the charges in the notice
are dismissed, the Bank may, in its discretion: (i) pay the Executive all or
part of the compensation withheld while its obligations under this Agreement
were suspended, and (ii) reinstate (in whole or in part) any of its obligations
which were suspended.
(b) If the Executive is removed from office and/or permanently
prohibited from participating in the conduct of the Bank's affairs by an order
issued under Section 8(e)(4) or Section 8(g)(1) of the FDIA (12 U.S.C. Sections.
1818(e)(4) and (g)(1)), all obligations of the Bank under this Agreement shall
terminate as of the effective date of the order, but vested rights of the
Executive and the Bank 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. Section. 1813(x)(1)), all obligations under this Agreement shall
terminate as of the date of default, but vested rights of the Executive and the
Bank 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. Section. 563.39(b)(5) (except to the extent that it is determined
that continuation of the Agreement for the continued operation of the Bank is
necessary): (i) by the Director of the OTS, or his/her designee, at the time the
Federal Deposit Insurance Corporation ("FDIC") or Resolution Trust Corporation
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. Section.
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.
18. 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. Section. 1828(k)) and 12
C.F.R. Part 359.
19. Entire Agreement. This Agreement embodies the entire agreement
between the Bank and the Executive with respect to the matters agreed to herein.
All prior agreements between the Bank and the Executive with respect to the
matters agreed to herein, including without limitation the Agreement between the
Employers and the Executive dated June 13, 1990 and the Agreements between the
Bank and the Executive dated November 16, 1999, December 1, 2000 and December 1,
2001, are hereby superseded and shall have no force or effect. Notwithstanding
the foregoing, nothing contained in this Agreement shall affect the agreement of
even date being entered into between the Corporation and the Executive.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
Attest: ESB BANK, F.S.B.
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------- ------------------------
Xxxxx X. Xxxxx Xxxxxxx X. Xxxxxxxxx
Senior Vice President and Secretary Chairman of the Board of
Directors
EXECUTIVE
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------
Xxxxxxxxx X. Xxxxxxxx
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