EXHIBIT 10.8
AGREEMENT
AGREEMENT, dated this 21st day of July 1997, between Pittsburgh Home
Financial Corp. (the "Corporation"), a Pennsylvania corporation, Pittsburgh
Home Savings Bank (the "Savings Bank"), a Pennsylvania-chartered savings bank
and XXXXXXX X. XXXXX (the "Executive").
WITNESSETH
WHEREAS, the Executive is presently an officer of the Corporation and
the Savings Bank (together, the "Employers"); and
WHEREAS, the Employers desires to be ensured of the Executive's
continued active participation in the business 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 in the event that his employment with the
Employers is terminated under specified circumstances;
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein contained, 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) BASE SALARY. "Base Salary" shall have the meaning set forth
in Section 3(a) hereof.
(b) 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.
For purposes of this paragraph, no act or failure to act on the Executive's part
shall be considered "willful" unless done, or omitted to be done, by the
Executive not in good faith and without reasonable belief that the Executive's
action or omission was in the best interest of the Employers.
(c) 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 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)
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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.
(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 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.
(f) DISABILITY. Termination by the Employers 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.
(g) 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, a
reduction by the Employers in the Executive's Base
Salary as the same may be increased from time to
time or, except to the extent permitted by Section
3(b) hereof, a reduction in the package of fringe
benefits provided to the Executive, taken as a
whole;
(ii) The principal executive office of the Employers is
relocated outside of the Pittsburgh, Pennsylvania,
area or, without the Executive's express written
consent, the Employers requires 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;
(iii) 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 (i) below;
(iv) The failure by the Employers to elect or to re-elect
or to appoint or to
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re-appoint the Executive to the office of Senior
Vice President of the Employers or a material
adverse change made by the Employers in the
Executive's functions, duties or responsibilities
as Senior Vice President of the Employers without
the Executive's express written consent; or
(v) The failure by the Employers to obtain the assumption
of and agreement to perform this Agreement by any
successor as contemplated in Section 9 hereof.
(h) IRS. IRS shall mean the Internal Revenue Service.
(i) 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
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 Employers' termination of
Executive's employment for Cause, which shall be effective immediately; and
(iv) is given in the manner specified in Section 10 hereof.
(j) RETIREMENT. Termination by the Employers of the Executive's
employment based on "Retirement" shall mean voluntary termination by the
Executive in accordance with the Employers' retirement policies, including
early retirement, generally applicable to their salaried employees.
2. TERM OF EMPLOYMENT.
(a) The Employers hereby employs the Executive as Senior Vice
President and Executive hereby accepts said employment and agrees to render
such services to the Employers on the terms and conditions set forth in this
Agreement. The term of employment under this Agreement shall be for two years,
commencing on the date of this Agreement and, upon approval of the Board of
Directors of the Employers, 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 one to two years. Prior to the first
annual anniversary of the date of this Agreement and each annual anniversary
thereafter, the Board of Directors of the Employers shall consider and review
(with appropriate corporate documentation thereof, and after taking into
account all relevant factors, including the Executive's performance hereunder)
extension of the term under 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. References herein to the term of
this
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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 Employers as may be consistent with his titles
and from time to time assigned to him by the Employers' Board of Directors.
3. COMPENSATION AND BENEFITS.
(a) The Employers shall compensate and pay Executive for his
services during the term of this Agreement at a minimum salary of $75,000 per
year, which may be increased from time to time in such amounts as may be
determined by the Board of Directors of the Employers and, except in connection
with a company-wide general reduction in salaries as a result of general
economic conditions, may not be decreased without the Executive's express
written consent (hereinafter, referred to as Executive's "Base Salary"). In
addition, the Executive may also receive bonus payments when, as, and if
determined in the sole discretion of the Board of Directors of the Employers.
(b) During the term of the Agreement, 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 and the Corporation, to the extent commensurate with his then duties
and responsibilities, as fixed by the Board of Directors of the Employers. The
Employers shall not make any changes in such plans, benefits or privileges
which would adversely affect Executive's rights or benefits thereunder, unless
such change occurs pursuant to a program applicable to all executive officers
of the Employers and does not result in a proportionately greater adverse
change in the rights of or benefits to Executive as compared with any other
executive officer of the Employers. Nothing paid to 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 Executive pursuant to Section 3(a)
hereof.
(c) During the term of this Agreement, 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, which shall in no event be
less than four weeks per annum (10 days for 1997). Executive shall not be
entitled to receive any additional compensation from the Employers for failure
to take a vacation, nor shall Executive be able to accumulate unused vacation
time from one year to the next, except to the extent authorized by the Board of
Directors of the Employers.
(d) In the event of termination by the Employers of the
Executive's employment because of Disability, the Employers shall provide
continued medical insurance in the Employers' health plan for the benefit of
the Executive and his spouse until the Executive shall have attained the age of
65, and such insurance shall be comparable to that which is provided to the
Executive as of the date of this Agreement notwithstanding anything to the
contrary in this Agreement. In the event of the Executive's death before he
attains the age of 65, the Employers shall provide the
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Executive's spouse said medical insurance for two years from the date of the
Executive's death.
(e) In the event of the Executive's death during the term of this
Agreement, the Executive's spouse, estate, legal representative or named
beneficiaries (as directed by the Executive in writing) shall be paid on a
monthly basis the greater of (i) the death benefits which may be available
under one or more policies of the Employers or (ii) the Executive's annual
compensation from the Employers at the rate in effect at the time of the
Executive's death for a period of twelve (12) months from the date of the
Executive's death.
4. EXPENSES. The Employers shall reimburse Executive or otherwise
provide for or pay for all reasonable expenses incurred by Executive in
furtherance of, or in connection with the business of the Employers, including,
but not by way of limitation, 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 Board of Directors of the Employers.
If such expenses are paid in the first instance by Executive, the Employers
shall reimburse the Executive therefor.
5. 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 Executive shall have the right, upon prior Notice of
Termination, to terminate his employment hereunder for any reason.
(b) In the event that (i) Executive's employment is terminated by
the Employers for Cause, Disability or Retirement or in the event of the
Executive's death, or (ii) Executive terminates his employment hereunder other
than for Good Reason, 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 set forth in subsections 3(d) and 3(e) hereinabove.
(c) In the event that (i) Executive's employment is terminated by
the Employers for other than Cause, Disability, Retirement or the Executive's
death, or (ii) such employment is terminated by the Executive (a) due to a
material breach of this Agreement by the Employers, which breach has not been
cured within fifteen (15) days after a written notice of non-compliance has
been given by the Executive to the Employers, or (b) for Good Reason, then the
Employers shall:
(A) pay to the Executive, in twenty-four (24) equal
monthly installments beginning with the first business day of the month
following the Date of Termination, a cash severance amount equal to two
(2) times the Executive's Base Salary, and
(B) maintain and provide for a period ending at the
earlier of (i) the expiration of the remaining term of employment
pursuant hereto prior to the Notice of Termination or (ii) the date of
the Executive's full-time employment by another employer (provided
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that the Executive is entitled under the terms of such employment to
benefits substantially similar to those described in this subparagraph
(B)), at no additional cost to the Executive beyond that which the
Executive is responsible for prior to the Date of Termination, the
Executive's continued participation in all group insurance, life
insurance, health and accident, disability and other employee benefit
plans, programs and arrangements 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),
provided that in the event that the Executive's participation in any
plan, program or arrangement as provided in this subparagraph (B) is
barred, or during such period any such plan, program or arrangement is
discontinued or the benefits thereunder are materially reduced, the
Employers 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 Executive has the right to receive from
the Employers, would constitute a "parachute payment" under Section 280G of the
Code, the payments and benefits 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 under
Section 5 being non-deductible to the Employers pursuant to Section 280G of the
Code and subject to the excise tax imposed under Section 4999 of the Code. 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 Employers' independent public accountants and paid by the
Employers. Such counsel shall be reasonably acceptable to the Employers 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. In the event that
the Employers and/or the Executive do not agree with the opinion of such
counsel, (i) the Employers shall pay to the Executive the maximum amount of
payments and benefits pursuant to Section 5, as selected by the Executive,
which such opinion indicates that there is a high probability do not result in
any of such payments and benefits being non-deductible to the Employers and
subject to the imposition of the excise tax imposed under Section 4999 of the
Code and (ii) the Employers may request, and Executive shall have the right to
demand that the Employers request, a ruling from the IRS as to whether the
disputed payments and benefits pursuant to Section 5 hereof have such
consequences. Any such request for a ruling from the IRS shall be promptly
prepared and filed by the Employers, but in no event later than thirty (30)
days from the date of the opinion of counsel referred to above, and shall be
subject to Executive's approval prior to filing, which shall not be
unreasonably withheld. The Employers and Executive agree to be bound by any
ruling received from the IRS and to make appropriate payments to each other to
reflect any such rulings, together with interest at the applicable federal rate
provided for in Section 7872(f)(2) of the Code. Nothing contained herein 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.
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7. MITIGATION; EXCLUSIVITY OF BENEFITS.
(a) In the event that the Employers are required to make
payments to the Executive pursuant to Section 5 hereof in connection with a
termination of Executive's employment for other than Good Reason, the cash
severance amount required to be paid by the Employers shall be reduced during
each year that such payments are required to be made by 50% of any payments
made to the Executive by any other employer. In all other circumstances, 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 the Corporation.
8. WITHHOLDING. All payments required to be made by the
Employers hereunder to the Executive shall be subject to the withholding of
such amounts, if any, relating to tax and other payroll deductions as the
Employers may reasonably determine should be withheld pursuant to any
applicable law or regulation.
9. ASSIGNABILITY. The Employers may assign this Agreement and
their rights and obligations hereunder in whole, but not in part, to any
corporation, bank or other entity with or into which the Employers may
hereafter merge or consolidate or to which the Employers may transfer all or
substantially all of their 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 Employers hereunder as fully as if it had been originally
made a party hereto, but may not otherwise assign this Agreement or their
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 Employers: President and Chief Executive Officer
Pittsburgh Home Financial Corp.
Pittsburgh Home Savings Bank
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
To the Executive: Xxxxxxx X. Xxxxx
000 Xxxxxxxxx Xxxxx
0
Xxxxxxxxxx, 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 Employers to
sign on their 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 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.
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 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 any
regulations promulgated thereunder.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
Attest: PITTSBURGH HOME FINANCIAL CORP.
/s/ Xxxxxxx X. Xxxx By: /s/ J. Xxxxx Xxxxxx
--------------------------- --------------------------------------
Xxxxxxx X. Xxxx, Senior J. Xxxxx Xxxxxx, Chairman of the Board,
Vice President President and Chief Executive Officer
Attest: PITTSBURGH HOME SAVINGS BANK
/s/ Xxxxxxx X. Xxxx By: /s/ J. Xxxxx Xxxxxx
--------------------------- --------------------------------------
Xxxxxxx X. Xxxx, Senior J. Xxxxx Xxxxxx, President
Vice President and Chief Executive Officer
EXECUTIVE
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxx X. Xxxxx
