AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.1
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) is dated as of
December 20, 2007 (the “Effective Date’) and is 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 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 Bank and the Executive
have previously entered into an employment agreement originally dated November
12, 1984 (with the Corporation becoming a party to it in January 1989) and
amended and restated as of December 15, 2005 (the “Prior
Agreement”);
WHEREAS,
the Employers desire to amend
and restate the Prior Agreement in order to make changes to comply with Section
409A of the Internal Revenue Code of 1986, as amended, as well as certain
other
changes;
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:
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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. “Change in Control” shall mean a change in the
ownership of the Corporation or the Bank, a change in the effective control
of
the Corporation or the Bank or a change in the ownership of a substantial
portion of the assets of the Corporation or the Bank, in each case as provided
under Section 409A of the Code and the regulations thereunder.
(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.
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(f)
Disability. “Disability”
shall mean 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 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 based upon
the occurrence of any of the following events:
(i)
any
material breach of this Agreement by the Employers, including without limitation
any of the following: (A) a material diminution in the Executive’s base
compensation, (B) a material diminution in the Executive’s authority, duties or
responsibilities as prescribed in Section 2, or (C) any requirement that
the
Executive report to a corporate officer or employee of the Employers instead
of
reporting directly to the Boards of Directors of the Employers, or
(ii)
any
material change in the geographic location at which the Executive must perform
his services under this Agreement;
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.
(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.
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(k)
Parachute Payment. The
term “Parachute Payment” has the meaning set forth in Section 280G of the Code
and applicable Treasury regulations.
(l)
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.
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 January 1, 2008. Prior to January 1, 2009
and each January 1st 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 to extend
each January 1st 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 January 1st. If any party gives timely notice that the term
will not be extended as of any January 1st, 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 $375,000 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.
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(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.
(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. If the costs of the club memberships are paid in the first
instance by the Executive, the Employers shall reimburse the Executive
therefor. Such reimbursement shall be paid promptly by the Employers
and in any event no later than March 15 of the year immediately following
the
year in which such costs were paid by the Executive.
(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.
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(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. Such reimbursement shall be paid
promptly by the Employers and in any event no later than March 15 of the
year
immediately following the year in which such expenses were
incurred.
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.
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(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 for Good Reason, then the
Employers shall:
(A)
pay to the Executive, in a lump sum cash payment within five business days
following 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
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 7(c)(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
(C)
pay to the Executive, in a lump sum within thirty (30) days following the
Date
of Termination, a cash amount equal to the projected cost to the Employers
of
providing benefits to the Executive until the Expiration Date in effect prior
to
the Notice of Termination 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 (including the use
of
an automobile and club dues but excluding benefits covered by subsection
(A)
above and excluding stock benefit 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.
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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 in connection with or following a Change in Control,
whether or not payable hereunder, (i) constitute AParachute
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, then 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, ABase
Amount@
means an amount equal to the Executive=s
Annualized
Includable Compensation for the Base Period as such terms are defined in
Sections 280G(d)(1) and (2) of the Code.
(b)
The determination of the Parachute Payments, the Base Amount and the Gross-Up
Amount, as well as any other calculations necessary to implement this
Section 8, shall be made 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 the determinations under Sections 8(a)
and
8(b) above, and in no event more than thirty (30) days after the Date of
Termination, 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 (the “IRS”), 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, then 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
(and in no event more than sixty (60) days after the date of the IRS or court
determination) 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 IRS or a court of competent jurisdiction (“Overpayment”), then
the Executive shall promptly pay (and in no event more than sixty (60) days
after the date of the IRS or court determination) 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.
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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.
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 upon a Change in
Control.
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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 furnished to the other
in
writing in accordance herewith, except that notices of change of address
shall
be effective only upon receipt.
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To
the Employers:
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Parkvale
Financial Corporation
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Parkvale
Savings Bank
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0000
Xxxxxxx Xxxx Xxxxxxx
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Xxxxxxxxxxx,
Xxxxxxxxxxxx 00000
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To
the Executive:
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Xxxxxx
X. XxXxxxxx, Xx.
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At
the address last appearing on the
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personnel
records of the Employers
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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.
10
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.
Changes in Statutes or
Regulations. If any statutory or regulatory provision referenced herein
is subsequently changed or re-numbered, or is replaced by a separate provision,
then the references in this Agreement to such statutory or regulatory provision
shall be deemed to be a reference to such section as amended, re-numbered
or
replaced.
19.
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.
20.
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.
21.
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,
including but not limited to the Prior Agreement.
22.
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.
11
23.
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 Federal Deposit Insurance Act (12 U.S.C. §1828(k)) and
the regulations promulgated thereunder, including 12 C.F.R. Part
359.
IN
WITNESS WHEREOF, this Agreement has been executed as of the date first written
above.
|
Attest:
|
PARKVALE
FINANCIAL CORPORATION
|
||
|
/s/
Xxxxxxx X. Xxxxxxxx
|
By: |
/s/
Xxxxxx X. Xxxxxxxx
|
|
|
Xxxxxxx
X. Xxxxxxxx, Corporate Secretary
|
Xxxxxx
X. Xxxxxxxxx
|
||
|
Chairman
of the Board
|
|||
|
Attest:
|
PARKVALE
SAVINGS BANK
|
||
|
/s/
Xxxxxxx X. Xxxxxxxx
|
By: |
/s/
Xxxxxx X. Xxxxxxxxx
|
|
|
Xxxxxxx
X. Xxxxxxxx, Corporate Secretary
|
Xxxxxx
X. Xxxxxxxxx
|
||
|
Chairman
of the Board
|
|||
|
Witness:
|
XXXXXX
X. XXXXXXXX, XX.
|
||
|
/s/
Xxxxxxx X. Xxxxxxxx
|
By: |
/s/
Xxxxxx X. XxXxxxx, Xx.
|
|
|
Xxxxxxx
X. Xxxxxxxx, Corporate Secretary
|
Xxxxxx
X. XxXxxxxx, Xx.,
Individually
|
||
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