Exhibit 10(j)
AMENDED AGREEMENT AMONG
ESB FINANCIAL CORPORATION
AND ESB BANK, F.S.B.
AND XXXXX X. XXXXX
AMENDED AGREEMENT, dated this 1st day of December 2002, among ESB
Financial Corporation (the "Corporation"), and ESB Bank, F.S.B., a Federally
chartered savings bank and a wholly owned subsidiary of the Corporation and
Xxxxx X. Xxxxx (the "Executive"). Hereinafter, any reference to the "Employers"
shall mean both the Corporation and ESB Bank and any reference to an "Employer"
shall mean either the Corporation or ESB Bank.
WITNESSETH:
WHEREAS, the Executive is presently an officer of the Employers; and
WHEREAS, the Employers desire 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) Annual Compensation. The Executive's "Annual Compensation" for
purposes of this Agreement shall be deemed to mean the highest level of base
salary and cash bonus paid to the Executive by the Employers or any subsidiary
thereof during any of the three calendar years ending prior to the calendar year
in which the Date of Termination occurs.
(b) Cause. Termination by the Employers 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. 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 Employer. "Change in Control of the
Employer" 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 any security of the Employer is
registered under the Exchange Act; provided that, without limitation, such a
change in control shall be deemed to have occurred if (i) any "person" (as such
term is used in Section 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 Employer representing 25% or more of the
combined voting power of the Employer'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 Employer 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 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 based on:
(i) Without the Executive's express written consent,
the assignment by the Employer to the Executive of any duties
which are materially inconsistent with the Executive's positions,
duties, responsibilities and status with the Employer immediately
prior to a Change in Control of the Employer, or a material
change in the Executive's reporting responsibilities, titles or
offices as an employee and as in effect immediately prior to such
a Change in Control, or any removal of the Executive from or any
failure to re-elect the Executive to any of such
responsibilities, titles or offices, except in connection with
the termination of
2
the Executive's employment for Cause, Disability or Retirement or
as a result of the Executive's death or by the Executive other
than for Good Reason;
(ii) Without the Executive's express written consent,
a reduction by the Employers in the Executive's base salary as in
effect on the date of the Change in Control of the Employer or as
the same may be increased from time to time thereafter or a
reduction in the package of fringe benefits provided to the
Executive;
(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; or
(iv) The failure by the Employer to obtain the
assumption of and agreement to perform this Agreement by any
successor as contemplated in Section 6 hereof.
(h) IRS. IRS shall mean the Internal Revenue Service.
(i) Notice of Termination. Any purported termination by the Employer
for Cause, Disability or Retirement or by the Executive 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 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 Employer's termination of the
Executive's employment for Cause, and (iv) is given in the manner specified in
Section 7 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 Employers' retirement policies, including early
retirement, generally applicable to their salaried employees.
2. Benefits Upon Termination. If the Executive's employment by the
Employers shall be terminated subsequent to a Change in Control of the Employer
by (i) the Employer other than for Cause, Retirement, or as a result of the
Executive's death, or (ii) the Executive for Good Reason, then the Employer
shall, subject to the provisions of Section 3 hereof, if applicable:
(a) pay to the Executive, in 36 equal monthly installments beginning
with the first business day of the month following the Date of Termination, a
cash amount equal to 2.99 times the Executive's Annual Compensation; and
3
(b) maintain and provide for a period ending at the earlier of (i)
thirty-six (36) months after the Date of Termination or (ii) the date of the
Executive's full-time employment by another employer (provided that the
Executive is entitled under the terms of such employment to benefits
substantially similar to those described in this subparagraph (b)), at no cost
to the Executive, the Executive's continued participation in all group
insurance, life insurance, health and accident, disability and other employee
benefit plans, programs and arrangements in which the Executive was entitled to
participate immediately prior to the Date of Termination (other than retirement
plans or stock compensation 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.
(c) The payments to the Executive hereunder 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, and no
payments shall be duplicated.
3. Limitation of Benefits under Certain Circumstances. If the
payments and benefits pursuant to Section 2 hereof, either alone or together
with other payments and benefits which the 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 2 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 2 being non-deductible to either of the Employers pursuant to
Section 280G of the Code and subject to the excise tax imposed under Section
4999 of the Code. The parties hereto agree that the payments and benefits
payable to the Executive upon termination shall be limited to three times the
Executive's average annual compensation in accordance with Section 310 of the
Office of Thrift Supervision ("OTS") Thrift Activities Handbook. The
determination of any reduction in the payments and benefits to be made pursuant
to Section 2 shall be based upon the opinion of independent tax counsel selected
by the Employers' independent public accountants and paid for 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 2, as selected by the Executive, which such opinion
indicates that there is a high probability that does 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 a ruling from the IRS as to whether the disputed payments
and benefits pursuant to Section 2 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 the Executive's
approval prior to filing, which
4
shall not be unreasonably withheld. The Employers and the 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 other than pursuant to
Section 2 hereof, or a reduction in the payments and benefits specified in
Section 2 below zero.
4. 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.
5. 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.
6. Assignability. The Employers may assign this Agreement and their
rights hereunder in whole, but not in part, to any corporation, bank or other
entity with or into which either of the Employers may hereafter merge or
consolidate or to which either of the Employers may transfer all or
substantially all of their respective 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 its rights hereunder. The Executive may not assign or transfer this Agreement
or any rights or obligations hereunder.
7. 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: ESB Financial Corporation and ESB Bank, F.S.B.
000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxxxx 00000
To the Executive: Xx. Xxxxx X. Xxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxxxx 00000
5
8. 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 Boards 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.
9. 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 the substantive laws of the Commonwealth of
Pennsylvania.
10. Nature of Employment and Obligations.
(a) Nothing contained herein shall be deemed to create other than a
terminable at will employment relationship between the Employers and the
Executive, and the Employers may terminate the Executive's employment at any
time, subject to providing any payments specified herein in accordance with the
terms hereof.
(b) 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.
11. Term of Agreement. This Agreement shall terminate three (3) years
after the date first above written; provided that on or prior to the first
anniversary of the date first above written and each anniversary thereafter, the
Boards of Directors of the Employers shall consider (with appropriate corporate
documentation thereof, and after taking into account all relevant factors,
including the Executive's performance as an employee) renewal of the term of
this Agreement for an additional one (1) year, and the term of this Agreement
shall be so extended unless the Boards of Directors of the Employers do not
approve such renewal and provide written notice to the Executive, or the
Executive gives written notice to the Employers, thirty (30) days prior to the
date of any such anniversary, of such party's or parties' election not to extend
the term beyond its then scheduled expiration date; and provided further that,
notwithstanding the foregoing to the contrary, this Agreement shall be
automatically extended for an additional one (1) year upon a Change in Control
of the Employer.
12. 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.
13. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
6
14. 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.
15. Regulatory Prohibition. Notwithstanding any other provision of
this Agreement to the contrary, any payments made to the Executive pursuant to
this Agreement, or otherwise, are subject to and conditioned upon their
compliance with Section 18(k) of the FDIA (12 U.S.C. Section. 1828(k)) and 12
C.F.R. Part 359.
16. Regulatory Actions. The following provisions shall be applicable
to the parties to the extent that they are required to be included in agreements
between a savings association and its employees pursuant to Section 563.39(b) of
the Regulations Applicable to All Savings Associations, 12 C.F.R. Section.
563.39(b), or any successor thereto, and shall be controlling in the event of a
conflict with any other provision of this Agreement.
(a) If the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Employers' affairs pursuant
to notice served under Section 8(e)(3) or Section 8(g)(1) of the Federal Deposit
Insurance Act ("FDIA")(12 U.S.C. Sections. 1818(e)(3) and 1818(g)(1)), the
Employers' obligations under this Agreement shall be suspended as of the date of
service, unless stayed by appropriate proceedings. If the charges in the notice
are dismissed, the Employers may, in their discretion: (i) pay the Executive all
or part of the compensation withheld while their obligations under this
Agreement were suspended, and (ii) reinstate (in whole or in part) any of their
obligations which were suspended.
(b) If the Executive is removed from office and/or permanently
prohibited from participating in the conduct of the Employers' affairs by an
order issued under Section 8(e)(4) or Section 8(g)(1) of the FDIA (12 U.S.C.
Sections. 1818(e)(4) and (g)(1)), all obligations of the Employers under this
Agreement shall terminate as of the effective date of the order, but vested
rights of the Executive and the Employers as of the date of termination shall
not be affected.
(c) If ESB Bank is in default, as defined in Section 3(x)(1) of the
FDIA (12 U.S.C. Section. 1813(x)(1)), all obligations under this Agreement shall
terminate as of the date of default, but vested rights of the Executive and the
Employers as of the date of termination shall not be affected.
(d) All obligations under this Agreement shall be terminated pursuant
to 12 C.F.R. Section. 563.39(b)(5) (except to the extent that it is determined
that continuation of the Agreement for the continued operation of the Employers
is necessary): (i) by the Director of the OTS, or his/her designee, at the time
the Federal Deposit Insurance Corporation ("FDIC") or Resolution Trust
Corporation enters into an agreement to provide assistance to or on behalf of
ESB Bank under the authority contained in Section 13(c) of the FDIA (12 U.S.C.
Section. 1823(c)); or (ii) by the Director of the OTS, or his/her designee, at
the time the Director or his/her designee approves a
7
supervisory merger to resolve problems related to operation of ESB Bank or when
ESB bank is determined by the Director of the OTS to be in an unsafe or unsound
condition, but vested rights of the Executive and the Employers as of the date
of termination shall not be affected.
17. Entire Agreement. This Agreement embodies the entire
agreement between the Employers and the Executive with respect to the matters
agreed to herein. All prior agreements between the Employers and the Executive
with respect to the matters agreed to herein, including without limitation the
Agreement between the Employers and the Executive dated December 1, 1998, are
hereby superseded and shall have no force or effect.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
ESB FINANCIAL CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxxxx X. Xxxxxxxx
President and Chief Executive Officer
ESB BANK, F.S.B.
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxxxx X. Xxxxxxxx
President and Chief Executive Officer
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Xxxxx X. Xxxxx
8
