ESB BANK AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.2
ESB
BANK
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
This
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”), is made and
entered into as of the 20th day of November 2007, between ESB Bank (the
“Bank”),
a Pennsylvania chartered savings bank and a wholly owned subsidiary of
ESB
Financial Corporation (the “Corporation”), and Xxxxxxxxx X. Xxxxxxxx (the
“Executive”).
WITNESSETH
WHEREAS,
the Executive is currently employed as President and Chief Executive
Officer of
the Bank pursuant to an amended employment agreement between the Bank
and the
Executive entered into as of December 1, 2002 and which was further amended
and
restated as of November 21, 2006 (the “Prior Agreement”);
WHEREAS,
the Executive is currently employed as President and Chief Executive
Officer of
the Corporation, a Pennsylvania corporation (the Corporation and the
Bank are
referred to together herein as the “Employers”), pursuant to an amended
employment agreement entered into as of December 1, 2002, which was amended
and
restated as of November 21, 2006 and which is being further amended and
restated
as of the date hereof;
WHEREAS,
the Bank desires 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 (the “Code”), as well as certain other changes;
WHEREAS,
the Bank desires to assure itself of the continued availability of the
Executive’s services as provided in this Agreement; and
WHEREAS,
the Executive is willing to serve the Bank on the terms and conditions
hereinafter set forth;
NOW
THEREFORE, in consideration of the mutual agreements herein contained,
and upon
the other terms and conditions hereinafter provided, the Bank and the
Executive
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 year
in which
the Date of Termination occurs and included in the Executive's gross
income for
tax purposes and any income earned and deferred by the Executive during
such
period pursuant to any plan or arrangement of the Employers.
(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. “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.
(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, 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 such Notice of Termination.
(g) 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.
(h) Good
Reason. Termination by the Executive of the Executive's
employment for “Good Reason” shall mean termination by the Executive based on
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
2
(ii) any
material change in the geographic location at which the Executive must
perform
her 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 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 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 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 until
the three-year anniversary of December 1, 2007 and, upon approval of
the Board
of Directors of the Bank, shall extend for an additional year on December
1st of
each subsequent
calendar year such that at any time after December 1, 2008 the remaining
term of
this Agreement shall be from two to three years, absent notice of non-renewal
as
set forth below. Prior to December 1, 2008 and each December 1st 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
December 1st. 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 December 1st. If any party gives timely notice
that the term will not be extended as of December 1st of
any year, 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.
3
(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 $388,100 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.
(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 six
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.
4
(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. 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.
(e) In
the event the Executive's employment is terminated by the Corporation
due to the
Executive’s Disability, Retirement or death, 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, except for coverage of any
beneficiaries pursuant to Section 3(f) below, 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
earlier of the expiration of the remaining term of this Agreement or
the
Executive’s death. 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; provided that any insurance premiums payable by the Employers
or
any successors pursuant to this Section 3(e) shall be payable at such
times and
in such amounts 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 participation of the Executive or other
covered
dependents in any group insurance plan is barred, the Employers shall
either
arrange to provide such persons 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.
(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 medical and dental benefits specified in Section 3(e) above to any
dependents of the Executive who were covered by the Employers at the
time of the
Executive’s death. In the event the Executive’s employment 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 their employees for the purpose of compensating employees
in
the event of disability, the Social Security Act, the Workers Compensation
or
Occupational Disease Act, or any state disability benefit law; and provided
further however, that such payments shall be delayed until the first
business
day of the month following the lapse of six months from the date of termination
of employment if deemed necessary by the Employers to avoid the tax and
interest
penalties imposed by Section 409A of the Code. If the payments are
delayed pursuant to the last proviso clause in the preceding sentence,
then the
payments that would have been provided to the Executive in the absence
of such
six-month delay shall be paid to the Executive on the first business
day of the
month following the lapse of six months from the date of termination
of
employment. Any insurance premiums payable by the Employers or any
successors pursuant to this Section 3(f) shall be payable at such times
and in
such amounts 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 participation of the Executive or other covered dependents
in any group insurance plan is barred, the Employers shall either arrange
to
provide such persons 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.
5
(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, 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.
6
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 for Good Reason, then the Bank
shall,
subject to the provisions of Section 6 hereof, if applicable,
(A) pay
to the Executive, in a lump sum as of the Date of Termination, a cash
severance
amount equal to three (3) times that portion of the Executive's Average
Annual
Compensation paid by the Bank,
(B) maintain
and provide for a period ending at the earlier of (i) thirty-six (36)
months
after the Date of Termination or (ii) the date of the Executive's full-time
employment by another employer (provided that the Executive is entitled
under
the terms of such employment to benefits substantially similar to those
described in this subparagraph (B)), at no cost to the Executive, the
Executive's continued participation in all group insurance, life insurance,
health and accident insurance, and disability insurance offered by the
Bank in
which the Executive was participating immediately prior to the Date of
Termination, with such coverage to be provided on the same terms as similar
coverage is provided to other employees of the Employers; provided that
any
insurance premiums payable by the Employers or any successors pursuant
to this
Section 5(d)(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. If the participation of the
Executive or other covered dependents in any group insurance plan is
barred, the
Employers shall either arrange to provide such persons 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;
7
(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 Bank, provided that 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 provided further that any insurance premiums
payable
by the Employers or any successors pursuant to this Section 5(d)(C) shall
be
payable at such times and in such amounts 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. If the participation of the
Executive or other covered dependents in any group insurance plan is
barred, the
Employers shall either arrange to provide such persons 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
(D) pay
to the Executive, in a lump sum within thirty (30) following the Date
of
Termination, a cash amount equal to the projected cost to the Employers
of
providing benefits to the Executive for a period of three years 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 (excluding retirement plans or stock compensation plans
of the
Employers), with the projected cost to the Employers to be based on the
costs
incurred for the calendar year immediately preceding the year in which
the Date
of Termination occurs and with any automobile-related costs to exclude
any
depreciation on Bank-owned automobiles.
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,
then the payments and benefits payable by the Bank pursuant to Section
5 hereof
shall be reduced by the minimum amount 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. If the payments and benefits
under Section 5 are required to be reduced, the cash severance shall
be reduced
first, followed by a reduction in the fringe benefits. 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 and paid
by the
Bank. Such counsel 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 in this Section 6 shall result in a
reduction of any payments or benefits to which the Executive may be entitled
upon termination of 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.
8
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,
except as set forth in Sections 5(d)(B) and (C) above.
(b) The
specific arrangements referred to herein are not intended to exclude
any other
benefits which may be available to the Executive upon a termination of
employment with the Employers pursuant to employee benefit plans of the
Employers or otherwise.
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:
9
| To the Bank: | Secretary | |
| ESB Bank | ||
| 000 Xxxxxxxx Xxxxxx | ||
| Xxxxxxx Xxxx, Xxxxxxxxxxxx 00000 | ||
|
|
To the Corporation: |
Secretary
|
|
ESB
Financial Corporation
|
||
|
000
Xxxxxxxx Xxxxxx
|
||
|
Xxxxxxx
Xxxx, Xxxxxxxxxxxx 00000
|
||
|
|
To the Executive: |
Xxxxxxxxx
X. Xxxxxxxx
|
|
At
the address last appearing on
|
||
|
the
personnel records of the Employers
|
||
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. In addition, notwithstanding anything in this
Agreement to the contrary, the Bank may amend in good faith any terms
of this
Agreement, including retroactively, in order to comply with Section
409A of the
Code.
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.
10
17. Changes
in Statutes or Regulations. If any statutory or regulation
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.
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. §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, December 1, 2001, December 1, 2002 and November 21, 2006, 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.
IN
WITNESS WHEREOF, this amended and restated Agreement has been executed
as of the
date first written above.
|
Attest:
|
ESB
BANK
|
|||
|
/s/
Xxxxx X. Xxxxx
|
By:
|
/s/
Xxxxxxx X. Xxxxxxxxx
|
||
|
Xxxxx
X. Xxxxx
|
Xxxxxxx
X. Xxxxxxxxx
|
|||
|
Group
Senior Vice President of Operations
|
Chairman
of the Board of Directors
|
|||
|
and
Secretary
|
||||
|
EXECUTIVE
|
||||
|
By:
|
/s/
Xxxxxxxxx X. Xxxxxxxx
|
|||
|
Xxxxxxxxx
X. Xxxxxxxx
|
||||
11
