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EXHIBIT 10.4
AGREEMENT
AGREEMENT, dated this 25th day of July 1996, between Pittsburgh Home
Savings Bank (the "Savings Bank"), a Pennsylvania-chartered savings bank and
wholly-owned subsidiary of Pittsburgh Home Financial Corp. (the "Corporation")
and XXXXXX X. XXXXXXX (the "Executive").
WITNESSETH
WHEREAS, the Executive is presently an officer of the Savings Bank
(the "Employer"); and
WHEREAS, the Employer desires to be ensured of the Executive's
continued active participation in the business of the Employer; and
WHEREAS, in order to induce the Executive to remain in the employ of
the Employer and in consideration of the Executive's agreeing to remain in the
employ of the Employer, the parties desire to specify the severance benefits
which shall be due the Executive in the event that his employment with the
Employer 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 Employer.
(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
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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) 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 Employer 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 Employer 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 Employer 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 Employer is relocated
outside of the Pittsburgh, Pennsylvania, area or, without
the Executive's express written consent, the Employer
requires the Executive to be based anywhere other than an
area in which the Employer's principal executive office is
located, except for required travel on business of the
Employer to an extent substantially consistent with the
Executive's present business travel obligations;
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(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 Employer to elect or to re-elect or to
appoint or to re-appoint the Executive to the office of
Senior Vice President of the Employer or a material adverse
change made by the Employer in the Executive's functions,
duties or responsibilities as Senior Vice President of the
Employer without the Executive's express written consent;
or
(v) The failure by the Employer 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 Employer 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 Employer'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.
(j) RETIREMENT. Termination by the Employer of the Executive's
employment based on "Retirement" shall mean voluntary termination by the
Executive in accordance with the Employer's retirement policies, including
early retirement, generally applicable to their salaried employees.
2. TERM OF EMPLOYMENT.
(a) The Employer hereby employs the Executive as Senior Vice
President and Executive hereby accepts said employment and agrees to render
such services to the Employer 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 Employer, 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
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first annual anniversary of the date of this Agreement and each annual
anniversary thereafter, the Board of Directors of the Employer 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 Employer 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 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 Employer as may be consistent with his titles
and from time to time assigned to him by the Employer's Board of Directors.
3. COMPENSATION AND BENEFITS.
(a) The Employer shall compensate and pay Executive for his
services during the term of this Agreement at a minimum salary of $54,500 per
year, which may be increased from time to time in such amounts as may be
determined by the Board of Directors of the Employer 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 Employer.
(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
Employer and the Corporation, to the extent commensurate with his then duties
and responsibilities, as fixed by the Board of Directors of the Employer. The
Employer 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
Employer 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 Employer. 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 Employer, which shall in no event
be less than four weeks per annum. Executive shall not be entitled to receive
any additional compensation from the Employer for failure to take a vacation,
nor shall Executive be able to accumulate unused vacation
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time from one year to the next, except to the extent authorized by the Board of
Directors of the Employer.
(d) In the event of termination by the Employer of the Executive's
employment because of Disability, the Employer shall provide continued medical
insurance in the Employer's 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 Employer shall provide the 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 Employer or (ii) the Executive's annual
compensation from the Employer 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 Employer 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 Employer, 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 Employer.
If such expenses are paid in the first instance by Executive, the Employer
shall reimburse the Executive therefor.
5. TERMINATION.
(a) The Employer 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 Employer 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.
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(c) In the event that (i) Executive's employment is terminated by
the Employer 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 Employer, 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 Employer, or (b) for Good Reason, then the
Employer 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
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 Employer),
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
Employer 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 Employer, 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 Employer 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 Employer's independent public accountants and paid by the
Employer. Such counsel shall be reasonably acceptable to the Employer 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 Employer and/or the Executive do not agree with the opinion of such
counsel, (i) the
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Employer 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 Employer and subject to the
imposition of the excise tax imposed under Section 4999 of the Code and (ii)
the Employer may request, and Executive shall have the right to demand that the
Employer 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 Employer,
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 Employer 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.
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 Employer pursuant to employee benefit plans
of the Employer or the Corporation.
8. WITHHOLDING. All payments required to be made by the Employer
hereunder to the Executive shall be subject to the withholding of such amounts,
if any, relating to tax and other payroll deductions as the Employer may
reasonably determine should be withheld pursuant to any applicable law or
regulation.
9. ASSIGNABILITY. The Employer 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 Employer may hereafter
merge or consolidate or to which the Employer 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
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Employer 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 Employer: Secretary
Pittsburgh Home Savings Bank
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
To the Executive: Xxxxxx X. Xxxxxxx
0000 Xxxxxxxxx Xxxxxx
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 Employer 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 Employer 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 Employer hereunder, such right shall be no
greater than the right of any unsecured general creditor of the Employer.
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.
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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 SAVINGS BANK
/s/ Xxxx X. Xxxxxx By: /s/ J. Xxxxx Xxxxxx
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Xxxx X. Xxxxxx, Secretary J. Xxxxx Xxxxxx, President
and Chief Executive Officer
EXECUTIVE
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
