ESB FINANCIAL CORPORATION AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.1
ESB
FINANCIAL CORPORATION
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 Financial Corporation (the “Corporation”), a
Pennsylvania corporation, and ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the
“Executive”).
WITNESSETH:
WHEREAS,
the Executive is currently
employed as President and Chief Executive Officer of the Corporation pursuant
to
an amended employment agreement between the Corporation 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
ESB Bank, a Pennsylvania chartered savings bank and a wholly owned subsidiary
of
the Corporation (the “Bank”) (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 Corporation 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 Corporation 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 Corporation 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 Corporation 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
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(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 Corporation 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 Corporation's termination of the 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
Corporation 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 Corporation 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 Corporation, 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 Corporation
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.
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(b) During
the term of this Agreement, the Executive shall perform such executive services
for the Corporation as may be consistent with her titles and from time to
time
assigned to her by the Corporation'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 Corporation 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 Corporation 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
Corporation. 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.
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(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.
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(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, and traveling expenses,
and all reasonable entertainment expenses (whether incurred at the Executive's
residence, while traveling or otherwise), subject to such reasonable
documentation and other limitations as may be established by the Boards of
Directors of the Employers. If such expenses are paid in the first
instance by the Executive, the Employers shall reimburse the Executive
therefor. Such reimbursement shall be paid promptly by the Employers
and in any event no later than March 15 of the year immediately following
the
year in which such expenses were incurred.
5. Termination.
(a) The
Corporation 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.
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(b) In
the event that (i) the Executive's employment is terminated by the Corporation
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 Corporation
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
Corporation shall:
(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 Corporation,
(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
Corporation 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;
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(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 Corporation, 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. Payment
of Additional Benefits under Certain Circumstances.
(a) 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 Employers (including, without limitation, the payments and benefits
which the Executive would have the right to receive from the Bank pursuant
to
Section 5 of the Agreement between the Bank and the Executive dated as of
the
date hereof (the “Bank Agreement”), before giving effect to any reduction in
such amounts pursuant to Section 6 of the Bank Agreement), would constitute
a
“parachute payment” as defined in Section 280G(b)(2) of the Code (the “Initial
Parachute Payment,” which includes the amounts paid pursuant to clause (A)
below), then the Corporation shall pay to the Executive, in a lump sum within
five business days after the Date of Termination, a cash amount equal to
the sum
of the following:
(A) the
amount by which the payments and benefits that would have otherwise been
paid by
the Bank to the Executive pursuant to Section 5 of the Bank Agreement are
reduced by the provisions of Section 6 of the Bank Agreement;
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(B) twenty
(20) percent (or such other percentage equal to the tax rate imposed by Section
4999 of the Code) of the amount by which the Initial Parachute Payment exceeds
the Executive's “base amount” from the Employers, as defined in Section
280G(b)(3) of the Code, with the difference between the Initial Parachute
Payment and the Executive's base amount being hereinafter referred to as
the
“Initial Excess Parachute Payment”; and
(C) such
additional amount (tax allowance) as may be necessary to compensate the
Executive for the payment by the Executive of state, local and federal income
and excise taxes on the payment provided under clause (B) above and on any
payments under this clause (C). In computing such tax allowance, the
payment to be made under clause (B) above shall be multiplied by the “gross up
percentage” (“GUP”). The GUP shall be determined as
follows:
GUP
= Tax
Rate
1-Tax
Rate
The
Tax
Rate for purposes of computing the GUP shall be the highest marginal federal,
state and local income and employment-related tax rate (including Social
Security and Medicare taxes), including any applicable excise tax rate,
applicable to the Executive in the year in which the payment under clause
(B)
above is made, and shall also reflect the phase-out of deductions and the
ability to deduct certain of such taxes.
(b) Notwithstanding
the foregoing, if it shall subsequently be determined in a final judicial
determination or a final administrative settlement to which the Executive
is a
party that the actual excess parachute payment as defined in Section 280G(b)(1)
of the Code is different from the Initial Excess Parachute Payment (such
different amount being hereafter referred to as the “Determinative Excess
Parachute Payment”), then the Corporation's independent tax counsel or
accountants shall determine the amount (the “Adjustment Amount”) which either
the Executive must pay to the Corporation or the Corporation must pay to
the
Executive in order to put the Executive (or the Corporation, as the case
may be)
in the same position the Executive (or the Corporation, as the case may be)
would have been if the Initial Excess Parachute Payment had been equal to
the
Determinative Excess Parachute Payment. In determining the Adjustment
Amount, the independent tax counsel or accountants shall take into account
any
and all taxes (including any penalties and interest) paid by or for the
Executive or refunded to the Executive or for the Executive's
benefit. As soon as practicable after the Adjustment Amount has been
so determined, and in no event more than thirty (30) days after the Adjustment
Amount has been so determined, the Corporation shall pay the Adjustment Amount
to the Executive or the Executive shall repay the Adjustment Amount to the
Corporation, as the case may be.
(c) In
each calendar year that the Executive receives payments of benefits that
constitute a parachute amount, the Executive shall report on her state, local
and federal income tax returns such information as is consistent with the
determination made by the independent tax counsel or accountants of the
Corporation as described above. The Corporation shall indemnify and
hold the Executive harmless from any and all losses, costs and expenses
(including without limitation, reasonable attorneys' fees, interest, fines
and
penalties) which the Executive incurs as a result of so reporting such
information, with such indemnification to be paid by the Corporation to the
Executive as soon as practicable and in any event no later than March 15
of the
year immediately following the year in which the amount subject to
indemnification was determined. The Executive shall promptly notify
the Corporation in writing whenever the Executive receives notice of the
institution of a judicial or administrative proceeding, formal or informal,
in
which the federal tax treatment under Section 4999 of the Code of any amount
paid or payable under this Section 6 is being reviewed or is in
dispute. The Corporation shall assume control at its expense over all
legal and accounting matters pertaining to such federal tax treatment (except
to
the extent necessary or appropriate for the Executive to resolve any such
proceeding with respect to any matter unrelated to amounts paid or payable
pursuant to this Section 6) and the Executive shall cooperate fully with
the
Corporation in any such proceeding. The Executive shall not enter
into any compromise or settlement or otherwise prejudice any rights the
Corporation may have in connection therewith without the prior consent of
the
Corporation.
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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 Corporation hereunder to the Executive
shall
be subject to the withholding of such amounts, if any, relating to tax and
other
payroll deductions as the Corporation may reasonably determine should be
withheld pursuant to any applicable law or regulation.
9. Assignability. The
Corporation 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 Corporation may hereafter merge or consolidate or to which the
Corporation 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 Corporation 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.
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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:
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To
the Corporation:
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Secretary
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ESB
Financial Corporation
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To
the Bank:
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Secretary
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ESB
Bank
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To
the Executive:
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At
the address last appearing on
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the
personnel records of the Employers
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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 Corporation 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 Corporation 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 Corporation 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 Corporation hereunder, such right shall be no
greater than the right of any unsecured general creditor of the
Corporation.
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. 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 Corporation and the Executive with respect to the matters agreed
to
herein. All prior agreements between the Corporation 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 Corporation 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
Bank and the Executive.
[Signature
page follows]
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IN
WITNESS WHEREOF, this amended and
restated Agreement has been executed as of the date first written
above.
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Attest:
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ESB
FINANCIAL CORPORATION
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/s/
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By:
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Group
Senior Vice President of Operations
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Chairman
of the Board of Directors
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and
Secretary
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EXECUTIVE
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By:
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/s/
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