Form 8-K

ESB FINANCIAL CORPORATION

Date: November 21, 2012

/s/ Charlotte A. Zuschlag

Charlotte A. Zuschlag

President and Chief Executive Officer

0001193125-12-478342.txt : 20121121 0001193125-12-478342.hdr.sgml : 20121121 20121121110250 ACCESSION NUMBER: 0001193125-12-478342 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20121120 ITEM INFORMATION: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20121121 DATE AS OF CHANGE: 20121121 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ESB FINANCIAL CORP CENTRAL INDEX KEY: 0000872835 STANDARD INDUSTRIAL CLASSIFICATION: SAVINGS INSTITUTION, FEDERALLY CHARTERED [6035] IRS NUMBER: 251659846 STATE OF INCORPORATION: PA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-19345 FILM NUMBER: 121220014 BUSINESS ADDRESS: STREET 1: 600 LAWRENCE AVE CITY: ELLWOOD CITY STATE: PA ZIP: 16117 BUSINESS PHONE: 7247585584 MAIL ADDRESS: STREET 1: 600 LAWRENCE AVENUE CITY: ELLWOOD CITY STATE: PA ZIP: 16117 FORMER COMPANY: FORMER CONFORMED NAME: PENNFIRST BANCORP INC DATE OF NAME CHANGE: 19960126 FORMER COMPANY: FORMER CONFORMED NAME: PENNWEST BANCORP INC DATE OF NAME CHANGE: 19910328 8-K 1 d442233d8k.htm FORM 8-K Form 8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported) November 20, 2012

ESB Financial Corporation

(Exact name of registrant as specified in its charter)


Pennsylvania	0-19345	25-1659846
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

600 Lawrence Avenue, Ellwood City, Pennsylvania		16117
(Address of principal executive offices)		(Zip Code)

Registrant’s telephone number, including area code (724) 758-5584

Not Applicable

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2 below):

¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 5.02

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

(e) On November 20, 2012, the boards of directors of ESB Financial Corporation (the “Company”) and ESB Bank (the “Bank”) approved the amendment and restatement of the following agreements:

•

the Company’s and the Bank’s employment agreements entered into with Charlotte A. Zuschlag, President and Chief Executive Officer of the Company and the Bank;

•

the change in control severance agreements entered into among the Company, the Bank and each of the following Group Senior Vice Presidents of the Company: Charles P. Evanoski, Frank D. Martz, and Todd F. Palkovich; and

•

the change in control severance agreements entered into among the Company, the Bank and certain Senior Vice Presidents of the Company and the Bank, including Richard E. Canonge.

Pursuant to the amended and restated employment agreement between ESB Bank and Charlotte Zuschlag, dated November 20, 2012, the Bank agreed to employ Ms. Zuschlag as President and Chief Executive Officer for a term ending three years after December 1, 2012, with a current base salary of $538,725. Such salary may be increased at the discretion of the board of directors of ESB Bank but may not be decreased during the term of the agreement without the prior written consent of Ms. Zuschlag. On an annual basis, the board of directors of ESB Bank considers whether to renew the employment agreement for an additional year. The employment agreement is terminable with or without cause by ESB Bank. The employment agreement provides that in the event of an involuntary termination of employment without cause (including a termination by Ms. Zuschlag for “good reason,” which includes a material change in her position, salary or duties without her consent), Ms. Zuschlag would be entitled to (1) an amount of cash severance which is equal to three times her average annual compensation, as defined, over the most recent three years preceding the year in which the date of termination occurs, (2) continued participation in certain insurance plans of the Bank, including medical, dental, life and disability insurance plans, at no cost to her until the earlier of 36 months or the date she receives substantially similar benefits from full-time employment by another employer, (3) if Ms. Zuschlag is still receiving medical and dental coverage after the end of the 36 month period referred to in clause (2), then she would be entitled to continued medical and dental coverage until the earlier of Ms. Zuschlag’s death or the date Ms. Zuschlag receives medical and dental coverage from a subsequent employer substantially similar to the coverage provided by the Bank, provided however, Ms. Zuschlag shall pay the employee share of the costs of such coverage provided pursuant to this clause (3) to the same extent as if she were still an employee, and (4) a lump sum cash payment equal to the projected cost of providing Ms. Zuschlag with benefits for a period of three years pursuant to any other employee benefit plans, programs or arrangements in which she was entitled to participate, excluding retirement plans, stock compensation plans and cash compensation plans. In the event Ms. Zuschlag’s continued

participation in any group insurance plan is barred or would trigger the payment of an excise tax under Section 4980D of the Internal Revenue Code (the “Code”), or if any such group insurance plan is discontinued, then the Bank shall either (1) provide substantially similar benefits under an alternative plan or (2) pay a lump sum cash amount to Ms. Zuschlag equal to the projected cost of providing continued coverage to Ms. Zuschlag until her projected date of death in the case of medical and dental coverage and until the three-year anniversary of her date of termination in the case of all other insurance plans. The employment agreement with ESB Bank provides that in the event any of the payments to be made thereunder or otherwise upon termination of employment are deemed to constitute “parachute payments” within the meaning of Section 280G of the Code, then such payments and benefits received thereunder shall be reduced by the minimum amount necessary to result in no portion of the payments and benefits being non-deductible by ESB Bank for federal income tax purposes. Parachute payments generally are payments in excess of three times the base amount, which is defined to mean the recipient’s average annual compensation from the employer includable in the recipient’s gross income during the most recent five taxable years ending before the date on which a change in control of the employer occurred. Recipients of parachute payments are subject to a 20% excise tax on the amount by which such payments exceed the base amount, in addition to regular income taxes, and payments in excess of the base amount are not deductible by the employer as compensation expense for federal income tax purposes.

The Company also entered into an amended and restated employment agreement with Ms. Zuschlag on November 20, 2012 to serve on terms substantially similar to the agreement entered into with ESB Bank, except as provided below. Ms. Zuschlag’s compensation, benefits and expenses are paid by the Company and ESB Bank in the same proportion as the time and services actually expended by her on behalf of each company. However, the agreement with the Company provides that severance payments payable to Ms. Zuschlag by the Company shall (1) include the amount by which the severance benefits payable by ESB Bank are reduced by her employment agreement with the Bank to avoid having the Bank make parachute payments under Section 280G of the Code, and (2) not be subject to reduction in the event of a change in control as are the amounts payable by ESB Bank. As a result, the severance benefits payable by the Company may constitute “parachute payments” under Section 280G of the Code. In addition, the agreement with the Company provides that the Company shall reimburse Ms. Zuschlag for any resulting excise taxes payable by her, plus such additional amount as may be necessary to compensate her for the payment of federal, state and local income, excise and other employment-related taxes on the additional payments.

The amended and restated change in control agreements for Group Senior Vice Presidents entered into by the Company and the Bank on November 20, 2012 with Messrs. Evanoski, Martz and Palkovich are intended to assist the Company and the Bank in maintaining a stable and competent management base. The agreements provide for a term ending three years after December 1, 2012, and subject to satisfactory performance reviews, among other things, the term shall be extended on each anniversary of December 1 for an additional year so that the remaining term will be three years as of the annual renewal date, unless either the boards of directors of the employers or the executive provides contrary written notice to the other not less than 30 days in advance of such anniversary date. The agreements are automatically extended for an additional one year upon a change in control, as defined. The agreements provide that in the event of an involuntary termination of employment without cause (including a termination

by the executive for “good reason,” which includes a material change in the executive’s position, salary or duties without his consent), the executive would be entitled to (1) an amount of cash severance which is equal to three times his average annual compensation, as defined, over the most recent three years preceding the year in which the date of termination occurs, (2) continued participation in certain insurance plans of the employers, including medical, dental, life and disability insurance plans, at no cost to the executive until the earlier of 36 months or the date the executive receives substantially similar benefits from full-time employment by another employer, (3) if the executive is still receiving medical and dental coverage after the end of the 36 month period referred to in clause (2), then he would be entitled to continued medical and dental coverage until the earlier of his death, the date on which he becomes eligible to receive benefits under Medicare or the date he receives medical and dental coverage from a subsequent employer substantially similar to the coverage provided by the Bank, provided however, the executive shall pay the employee share of the costs of such coverage provided pursuant to this clause (3) to the same extent as if he were still an employee, and (4) a lump sum cash payment equal to the projected cost of providing the executive with benefits for a period of three years pursuant to any other employee benefit plans, programs or arrangements in which he was entitled to participate, excluding retirement plans, stock compensation plans and cash compensation pans. In the event the executive’s continued participation in any group insurance plan is barred or would trigger the payment of an excise tax under Section 4980D of the Code, or if any such group insurance plan is discontinued, then the Bank shall either (1) provide substantially similar benefits under an alternative plan or (2) pay a lump sum cash amount to the executive equal to the projected cost of providing continued coverage to the executive until his projected date of eligibility to receive benefits under Medicare in the case of medical and dental coverage and until the three-year anniversary of his date of termination in the case of all other insurance plans. The agreements provide that if any of the payments or benefits to be provided thereunder or otherwise upon termination of employment are deemed to constitute a “parachute payment” within the meaning of Section 280G of the Code, which would cause the executive to incur an excise tax under Section 4999 of the Code, then the Company shall reimburse the executive for any resulting excise taxes payable by him, plus such additional amount as may be necessary to compensate the executive for the payment of federal, state and local income, excise and other employment-related taxes on the additional payments.

The amended and restated change in control agreements for certain of the Company’s and the Bank’s Senior Vice Presidents entered into by the Company and the Bank on November 20, 2012 with Mr. Canonge are similar to the amended and restated change in control agreements for Group Senior Vice Presidents discussed above, except that the agreements with the Senior Vice Presidents provide for severance payments in the event that termination of employment or certain adverse actions are taken with respect to the executive’s employment within 24 months subsequent to a change in control in an amount equal to two times the respective executive’s annual compensation, as defined, and provide for continued benefits for only 24 months. In addition, the agreements provide that if any of the payments or benefits to be provided thereunder or otherwise upon termination of employment are deemed to constitute a “parachute payment” within the meaning of Section 280G of the Code, then the payments and benefits shall be reduced by the minimum amount necessary so that no excise taxes are triggered under Section 4999 of the Code.

For additional information, reference is made to the amended and restated employment agreements and amended and restated change in control agreements included as Exhibits 10.1 through 10.4 hereto, which are incorporated herein by reference

Item 9.01

Financial Statements and Exhibits

(a)

Not applicable.

(b)

Not applicable.

(c)

Not applicable.

(d)

Exhibits

The following exhibits are included herewith.


Number		Description

10.1		Amended and Restated Employment Agreement, dated November 20, 2012, between ESB Financial Corporation and Charlotte A. Zuschlag

10.2		Amended and Restated Employment Agreement, dated November 20, 2012, between ESB Bank and Charlotte A. Zuschlag

10.3		Form of Amended and Restated Change in Control Agreement, dated November 20, 2012, among ESB Financial Corporation, ESB Bank and each of the Company’s Group Senior Vice Presidents (Charles P. Evanoski, Frank D. Martz and Todd F. Palkovich)

10.4		Form of Amended and Restated Change in Control Agreement, dated November 20, 2012, among ESB Financial Corporation, ESB Bank and certain of the Company’s Senior Vice Presidents, including Richard E. Canonge

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

EX-10.1 2 d442233dex101.htm AMENDED AND RESTATED EMPLOYMENT AGREEMENT 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 2012, between ESB Financial Corporation (the “Corporation”), a Pennsylvania corporation, and Charlotte A. Zuschlag (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 and as of November 20, 2007 (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 as of November 20, 2007 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 update and revise the agreement in several respects;

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 the following compensation provided to the Executive by the Employers or any subsidiary thereof during the most recent three taxable years preceding the year in which the Date of Termination occurs: (i) compensation included in the Executive’s gross income for tax purposes, (ii) any income earned and deferred by the Executive pursuant to any plan or arrangement of the

Employers, (iii) matching contributions from the Employers to the Executive’s account under the Retirement Savings Plan, and (iv) contributions from the Employers to the Executive’s account under the Excess Benefit Plan.

(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. 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.

(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 or for death, 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

(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 or for death, 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, 2012 and, upon approval of the Board of Directors of the Corporation, shall extend for an additional year on December 1st of each year beginning December 1, 2013 such that at any time after December 1, 2013 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, 2013 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 1^st 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.

(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 $538,725 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.

(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, in each case subject to Section 3(g) below. 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 (i) the expiration of the remaining term of this Agreement absent such Disability or Retirement or (ii) 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.

(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 spouse or other dependents of the Executive who were covered by the Employers at the time of the Executive’s death, in each case subject to Section 3(g) below. 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.

(g) In the event that the continued participation of the Executive and/or her spouse or other dependents in any group insurance plan as provided in Section 3(e) or 3(f) is barred or would trigger the payment of an excise tax under Section 4980D of the Code, or during the period set forth in Section 3(e) or 3(f) any such group insurance plan is discontinued, then the Bank shall at its election either (i) arrange to provide the Executive (or her spouse and other dependents in the case of coverage under Section 3(f)) with alternative benefits substantially similar to those which the Executive (or her spouse and other dependents in the case of coverage under Section 3(f)) was entitled to receive under such group insurance plans immediately prior to the Date of Termination, provided that the alternative benefits do not trigger the payment of an excise tax under Section 4980D of the Code, or (ii) pay to the Executive (or her spouse and other dependents in the case of coverage under Section 3(f)) within 10 business days following the Date of Termination (or within 10 business days following the discontinuation of the benefits if later) a lump sum cash amount equal to the projected cost to the Bank of providing continued coverage to the Executive (or her spouse and other dependents in the case of coverage under Section 3(f)) until the projected date of the Executive’s death or the expiration of the remaining term of this Agreement as set forth in Section 3(e) or 3(f), with the projected cost to be based on the costs being incurred immediately prior to the Date of Termination (or the discontinuation of the benefits if later), as increased by 10% each year. If the time period for making the lump sum cash payment under this Section 3(g) commences in one calendar year and ends in the succeeding calendar year, then the payment shall not be paid until the succeeding calendar year.

(h) 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.

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.

(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), 3(f) and 3(g) hereof.

(d) In the event that either the Executive’s employment is terminated by the Corporation for other than Cause, Disability, Retirement or the Executive’s death or such employment is terminated by the Executive for Good Reason, then the Corporation shall:

(i) 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,

(ii) maintain and provide for a period ending at the earlier of (y) thirty-six (36) months after the Date of Termination or (z) 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 (ii)), 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, in each case subject to Section 5(d)(iv) below. Such coverage shall 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)(ii) 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;

(iii) if the Executive is still receiving medical and dental coverage pursuant to Section 5(d)(ii) 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 (A) the Executive’s death 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, in each case subject to Section 5(d)(iv) below, provided that during the period that the Executive receives medical and dental coverage pursuant to this Section 5(d)(iii), 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)(iii) 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;

(iv) in the event that the continued participation of the Executive in any group insurance plan as provided in clauses (ii) and (iii) of this Section 5(d) is barred or would trigger the payment of an excise tax under Section 4980D of the Code, or during the period set forth in Section 5(d)(ii) or (iii) any such group insurance plan is discontinued, then the Bank shall at its election either (A) arrange to provide the Executive with alternative benefits substantially similar to those which the Executive was entitled to receive under such group insurance plans immediately prior to the Date of Termination, provided that the alternative benefits do not trigger the payment of an excise tax under Section 4980D of the Code, or (B) pay to the Executive within 10 business days following the Date of Termination (or within 10 business days following the discontinuation of the benefits if later) a lump sum cash amount equal to the projected cost to the Bank of providing continued coverage to the Executive until her projected date of death in the case of medical and dental coverage and until the three-year anniversary of her Date of Termination in the case of all other insurance plans, with the projected cost to be based on the costs being incurred immediately prior to the Date of Termination (or the discontinuation of the benefits if later), as increased by 10% each year; and

(v) pay to the Executive, in a lump sum within thirty (30) days 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, stock compensation plans or cash 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.

(e) Notwithstanding any other provision contained in this Agreement, if the time period for making any cash payment under Section 5(d) commences in one calendar year and ends in the succeeding calendar year, then the payment shall not be paid until the succeeding calendar year.

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 (i) 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:

(i) 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;

(ii) 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

(iii) 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 taxes, employment-related taxes (including Social Security and Medicare taxes) and excise taxes on the payment provided under clause (ii) above and on any payments under this clause (iii). In computing such tax allowance, the payment to be made under clause (ii) 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 (ii) above is made, and shall also reflect the phase-out of deductions and the ability to deduct certain of such taxes.

(b) The “Adjusted Excess Parachute Payment” shall equal the Initial Excess Parachute Payment plus the amounts paid pursuant to clauses (ii) and (iii) of Section 6(a) above.

(c) 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 Adjusted 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 Adjusted 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.

(d) 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.

(e) Notwithstanding any other provision contained in this Agreement, if the time period for making any cash payment under this Section 6 commences in one calendar year and ends in the succeeding calendar year, then the payment shall not be paid until the succeeding calendar year.

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)(ii) and (iii) 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.

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 Corporation:		Secretary
		ESB Financial Corporation
		600 Lawrence Avenue
		Ellwood City, Pennsylvania 16117

To the Bank:		Secretary
		ESB Bank
		600 Lawrence Avenue
		Ellwood City, Pennsylvania 16117

To the Executive:		Charlotte A. Zuschlag
		At the address last appearing on
		the personnel records of the Employers

11. Amendment; Waiver. No provisions of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and 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.

16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together will constitute one and the same instrument.

17. Changes in Statutes or Regulations. If any statutory or regulatory 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 the regulations promulgated thereunder, including 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, November 21, 2006 and November 20, 2007, 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]

IN WITNESS WHEREOF, this amended and restated Agreement has been executed as of the date first written above.


Attest:	ESB FINANCIAL CORPORATION

/s/ Frank D. Martz	By:	/s/ William B. Salsgiver
Frank D. Martz		William B. Salsgiver
Group Senior Vice President of Operations and Secretary		Chairman of the Board of Directors

	EXECUTIVE

	By:	/s/ Charlotte A. Zuschlag
		Charlotte A. Zuschlag

EX-10.2 3 d442233dex102.htm AMENDED AND RESTATED EMPLOYMENT AGREEMENT Amended and Restated Employment Agreement

Exhibit 10.2

ESB BANK

AMENDED AND RESTATED EMPLOYMENT AGREEMENT

This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”), is made and entered into as of the 20th day of November 2012, between ESB Bank (the “Bank”), a Pennsylvania chartered savings bank and a wholly owned subsidiary of ESB Financial Corporation (the “Corporation”), and Charlotte A. Zuschlag (the “Executive”).

WITNESSETH

WHEREAS, the Executive is currently employed as President and Chief Executive Officer of the Bank pursuant to an amended employment agreement between the Bank and the Executive entered into as of December 1, 2002 and which was further amended and restated as of November 21, 2006 and as of November 20, 2007 (the “Prior Agreement”);

WHEREAS, the Executive is currently employed as President and Chief Executive Officer of the Corporation, a Pennsylvania corporation (the Corporation and the Bank are referred to together herein as the “Employers”), pursuant to an amended employment agreement entered into as of December 1, 2002, which was amended and restated as of November 21, 2006 and as of November 20, 2007 and which is being further amended and restated as of the date hereof;

WHEREAS, the Bank desires to amend and restate the Prior Agreement in order to update and revise the agreement in several respects;

WHEREAS, the Bank desires to assure itself of the continued availability of the Executive’s services as provided in this Agreement; and

WHEREAS, the Executive is willing to serve the Bank on the terms and conditions hereinafter set forth;

NOW THEREFORE, in consideration of the mutual agreements herein contained, and upon the other terms and conditions hereinafter provided, the Bank and the Executive hereby agree as follows:

1. Definitions. The following words and terms shall have the meanings set forth below for the purposes of this Agreement:

occurs: (i) compensation included in the Executive’s gross income for tax purposes, (ii) any income earned and deferred by the Executive pursuant to any plan or arrangement of the Employers, (iii) matching contributions from the Employers to the Executive’s account under the Retirement Savings Plan, and (iv) contributions from the Employers to the Executive’s account under the Excess Benefit Plan.

(b) Base Salary. “Base Salary” shall have the meaning set forth in Section 3(a) hereof.

(e) Code. “Code” shall mean the Internal Revenue Code of 1986, as amended.

(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:

(ii) any material change in the geographic location at which the Executive must perform her services under this Agreement;

(i) IRS. “IRS” shall mean the Internal Revenue Service.

(j) Notice of Termination. Any purported termination of the Executive’s employment by the Bank for any reason, including without limitation for Cause, Disability or Retirement, or by the Executive for any reason, including without limitation for Good Reason, shall be communicated by a written “Notice of Termination” to the other party hereto. For purposes of this Agreement, a “Notice of Termination” shall mean a dated notice which (i) indicates the specific termination provision in this Agreement relied upon, (ii) sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated, (iii) specifies a Date of Termination, which shall be not less than thirty (30) nor more than ninety (90) days after such Notice of Termination is given, except in the case of the Bank’s termination of Executive’s employment for Cause or for death, which shall be effective immediately, and (iv) is given in the manner specified in Section 10 hereof.

2. Term of Employment.

(a) The Bank hereby employs the Executive as President and Chief Executive Officer and the Executive hereby accepts said employment and agrees to render such services to the Bank on the terms and conditions set forth in this Agreement. The term of employment under

this Agreement shall be until the three-year anniversary of December 1, 2012 and, upon approval of the Board of Directors of the Bank, shall extend for an additional year on December 1^st of each year beginning December 1, 2013 such that at any time after December 1, 2013 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, 2013 and each December 1^st thereafter, the Board of Directors of the Bank shall consider and review (with appropriate corporate documentation thereof, and after taking into account all relevant factors, including the Executive’s performance hereunder) an extension of the term of this Agreement, and the term shall continue to extend each year if the Board of Directors approves such extension unless the Executive gives written notice to the Employers of the Executive’s election not to extend the term, with such written notice to be given not less than thirty (30) days prior to any such December 1st. If the Board of Directors elects not to extend the term, it shall give written notice of such decision to the Executive not less than thirty (30) days prior to any such December 1st. If any party gives timely notice that the term will not be extended as of December 1^st 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.

(b) During the term of this Agreement, the Executive shall perform such executive services for the Bank as may be consistent with her titles and from time to time assigned to her by the Bank’s Board of Directors.

3. Compensation and Benefits.

(b) During the term of this Agreement, the Executive shall be entitled to participate in and receive the benefits of any pension or other retirement benefit plan, profit sharing, stock option, employee stock ownership, or other plans, benefits and privileges given to employees and executives of the Employers, to the extent commensurate with her then duties and responsibilities, as fixed by the Boards of Directors of the Employers. The Bank shall not make any changes in such plans, benefits or privileges which would adversely affect the Executive’s rights or benefits thereunder, unless such change occurs pursuant to a program applicable to all executive officers of the Bank and does not result in a proportionately greater adverse change in the rights of or benefits to the Executive as compared with any other executive officer of the Bank. Nothing paid to the Executive under any plan or arrangement presently in effect or made available in the future shall be deemed to be in lieu of the salary payable to the Executive pursuant to Section 3(a) hereof.

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.

4. Expenses. The Employers shall reimburse the Executive or otherwise provide for or pay for all reasonable expenses incurred by the Executive in furtherance of or in connection with the business of the Employers, including, but not by way of limitation, automobile expenses described in Section 3(d) hereof, traveling expenses, and all reasonable entertainment expenses (whether incurred at the Executive’s residence, while traveling or otherwise), subject to such reasonable documentation and other limitations as may be established by the Boards of Directors of the Employers. If such expenses are paid in the first instance by the Executive, the Employers shall reimburse the Executive therefor. Such reimbursement shall be paid promptly by the Employers and in any event no later than March 15 of the year immediately following the year in which such expenses were incurred.

5. Termination.

(a) The Bank shall have the right, at any time upon prior Notice of Termination, to terminate the Executive’s employment hereunder for any reason, including without limitation termination for Cause, Disability or Retirement, and the Executive shall have the right, upon prior Notice of Termination, to terminate her employment hereunder for any reason.

(b) In the event that (i) the Executive’s employment is terminated by the Bank for Cause or (ii) the Executive terminates her employment hereunder other than for Disability, Retirement, death or Good Reason, the Executive shall have no right pursuant to this Agreement to compensation or other benefits for any period after the applicable Date of Termination.

(d) In the event that either the Executive’s employment is terminated by the Bank for other than Cause, Disability, Retirement or the Executive’s death or such employment is terminated by the Executive for Good Reason, then the Bank shall, subject to the provisions of Section 6 hereof, if applicable,

(i) pay to the Executive, in a lump sum as of the Date of Termination, a cash severance amount equal to three (3) times that portion of the Executive’s Average Annual Compensation paid by the Bank,

and accident insurance, and disability insurance offered by the Bank in which the Executive was participating immediately prior to the Date of Termination, in each case subject to Section 5(d)(iv) below. Such coverage shall 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)(ii) 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;

(iii) if the Executive is still receiving medical and dental coverage pursuant to Section 5(d)(ii) 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 (A) the Executive’s death 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 Bank, in each case subject to Section 5(d)(iv) below, provided that during the period that the Executive receives medical and dental coverage pursuant to this Section 5(d)(iii), 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)(iii) 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;

to participate immediately prior to the Date of Termination (excluding retirement plans, stock compensation plans or cash compensation plans of the Employers), with the projected cost to the Employers to be based on the costs incurred for the calendar year immediately preceding the year in which the Date of Termination occurs and with any automobile-related costs to exclude any depreciation on Bank-owned automobiles.

6. Limitation of Benefits under Certain Circumstances. If the payments and benefits pursuant to Section 5 hereof, either alone or together with other payments and benefits which the Executive has the right to receive from the Bank, would constitute a “parachute payment” under Section 280G of the Code, then the payments and benefits payable by the Bank pursuant to Section 5 hereof shall be reduced by the minimum amount necessary to result in no portion of the payments and benefits payable by the Bank under Section 5 being non-deductible to the Bank pursuant to Section 280G of the Code and subject to the excise tax imposed under Section 4999 of the Code. If the payments and benefits under Section 5 are required to be reduced, the cash severance shall be reduced first, followed by a reduction in the fringe benefits. The determination of any reduction in the payments and benefits to be made pursuant to Section 5 shall be based upon the opinion of independent tax counsel selected by the Bank and paid for by the Bank. Such counsel shall promptly prepare the foregoing opinion, but in no event later than thirty (30) days from the Date of Termination, and may use such actuaries as such counsel deems necessary or advisable for the purpose. Nothing contained in this Section 6 shall result in a reduction of any payments or benefits to which the Executive may be entitled upon termination of employment under any circumstances other than as specified in this Section 6, or a reduction in the payments and benefits specified in Section 5 below zero.

7. Mitigation; Exclusivity of Benefits.

8. Withholding. All payments required to be made by the Bank hereunder to the Executive shall be subject to the withholding of such amounts, if any, relating to tax and other payroll deductions as the Bank may reasonably determine should be withheld pursuant to any applicable law or regulation.

9. Assignability. The Bank may assign this Agreement and its rights and obligations hereunder in whole, but not in part, to any corporation, bank or other entity with or into which the Bank may hereafter merge or consolidate or to which the Bank may transfer all or substantially all of its assets, if in any such case said corporation, bank or other entity shall by operation of law or expressly in writing assume all obligations of the Bank hereunder as fully as if it had been originally made a party hereto, but may not otherwise assign this Agreement or its rights and obligations hereunder. The Executive may not assign or transfer this Agreement or any rights or obligations hereunder.


To the Bank:		Secretary
		ESB Bank
		600 Lawrence Avenue
		Ellwood City, Pennsylvania 16117

To the Corporation:		Secretary
		ESB Financial Corporation
		600 Lawrence Avenue
		Ellwood City, Pennsylvania 16117

To the Executive:		Charlotte A. Zuschlag
		At the address last appearing on
		the personnel records of the Employers

11. Amendment; Waiver. No provisions of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by the Executive and such officer or officers as may be specifically designated by the Board of Directors of the Bank to sign on its behalf. No waiver by any party hereto at any time of any breach by any other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. In addition, notwithstanding anything in this Agreement to the contrary, the Bank may amend in good faith any terms of this Agreement, including retroactively, in order to comply with Section 409A of the Code.

13. Nature of Obligations. Nothing contained herein shall create or require the Bank to create a trust of any kind to fund any benefits which may be payable hereunder, and to the extent that the Executive acquires a right to receive benefits from the Bank hereunder, such right shall be no greater than the right of any unsecured general creditor of the Bank.

14. Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

19. Entire Agreement. This Agreement embodies the entire agreement between the Bank and the Executive with respect to the matters agreed to herein. All prior agreements between the Bank and the Executive with respect to the matters agreed to herein, including without limitation the Agreement between the Employers and the Executive dated June 13, 1990 and the Agreements between the Bank and the Executive dated November 16, 1999, December 1, 2000, December 1, 2001, December 1, 2002, November 21, 2006 and November 20, 2007, are hereby superseded and shall have no force or effect. Notwithstanding the foregoing, nothing contained in this Agreement shall affect the agreement of even date being entered into between the Corporation and the Executive.

IN WITNESS WHEREOF, this amended and restated Agreement has been executed as of the date first written above.


Attest:	ESB BANK

/s/ Frank D. Martz	By:	/s/ William B. Salsgiver
Frank D. Martz		William B. Salsgiver
Group Senior Vice President of Operations and Secretary		Chairman of the Board of Directors

	EXECUTIVE

	By:	/s/ Charlotte A. Zuschlag
		Charlotte A. Zuschlag

EX-10.3 4 d442233dex103.htm FORM OF AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT Form of Amended and Restated Change in Control Agreement

Exhibit 10.3

[Form for Group SVPs]

AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT AMONG

ESB FINANCIAL CORPORATION, ESB BANK

AND

This AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT (this “Agreement”), dated as of the 20^th day of November 2012, is among ESB Financial Corporation (the “Corporation”), ESB Bank, a Pennsylvania chartered savings bank and a wholly owned subsidiary of the Corporation (the “Bank”), and (the “Executive”). Any reference to the “Employers” shall mean both the Corporation and the Bank, and any reference to an “Employer” shall mean either the Corporation or the Bank, as the context requires.

WITNESSETH:

WHEREAS, the Executive is presently an officer of the Employers, and the Executive and the Employers have previously entered into a change in control agreement dated November 21, 2006, as amended and restated as of November 20, 2007 (the “Prior Agreement”);

WHEREAS, the Employers desire to amend and restate the Prior Agreement in order to update and revise the agreement in several respects;

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:

(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. “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.

(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 death, 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.

(f) 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.

(g) Good Reason. Termination by the Executive of the Executive’s employment for “Good Reason” shall mean termination by the Executive following a Change of Control based on the occurrence of any of the following events:

(i) (A) a material diminution in the Executive’s base compensation as in effect immediately prior to the date of the Change in Control or as the same may be increased from time to time thereafter, (B) a material diminution in the Executive’s authority, duties or responsibilities as in effect immediately prior to the Change in Control, or (C) a material diminution in the authority, duties or responsibilities of the officer (as in effect immediately prior to the date of the Change in Control) to whom the Executive is required to report immediately prior to the Change in Control,

(ii) any material breach of this Agreement by the Employers, or

(iii) any material change in the geographic location at which the Executive must perform his services under this Agreement immediately prior to the Change in Control;

(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 Cause, Disability or Retirement or by the Executive 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 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 Employers’ termination of the Executive’s employment for Cause or for death, which shall be effective immediately, and (iv) is given in the manner specified in Section 7 hereof.

(j) 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. Benefits Upon Termination. If the Executive’s employment by the Employers shall be terminated concurrently with or subsequent to a Change in Control by (i) the Employers other than for Cause, Disability or Retirement or as a result of the Executive’s death, or (ii) the Executive for Good Reason, then the Employers shall:

(a) pay to the Executive, in a lump sum as of the Date of Termination, a cash amount equal to three times the Executive’s Average Annual Compensation;

(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 in which the Executive was participating immediately prior to the Date of Termination, in each case subject to Section 2(d) below; provided that any insurance premiums payable by the Employers or any successors pursuant to this Section 2(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;

(c) if the Executive is still receiving medical and dental coverage pursuant to Section 2(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, (ii) the date on which the Executive becomes eligible to receive benefits under Medicare, or (iii) the date on which the Executive is entitled to receive benefits from a subsequent employer which are substantially similar to the medical and dental coverage provided by the Bank, in each case subject to Section 2(d) below, provided that during the period that the Executive receives medical and dental coverage pursuant to this Section 2(c), the Executive shall pay the employee share of the costs of such coverage as if he was still an employee, and provided further that any insurance premiums payable by the Employers or any successors pursuant to this Section 2(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;

(d) in the event that the continued participation of the Executive in any group insurance plan as provided in Section 2(b) or 2(c) is barred or would trigger the payment of an excise tax under Section 4980D of the Code, or during the period set forth in Section 2(b) or 2(c) any such group insurance plan is discontinued, then the Bank shall at its election either (i) arrange to provide the Executive with alternative benefits substantially similar to those which the Executive was entitled to receive under such group insurance plans immediately prior to the Date of Termination, provided that the alternative benefits do not trigger the payment of an excise tax under Section 4980D of the Code, or (ii) pay to the Executive within 10 business days following the Date of Termination (or within 10 business days following the discontinuation of the benefits if later) a lump sum cash amount equal to the projected cost to the Bank of providing continued coverage to the Executive until the Executive’s projected date of eligibility to receive benefits under Medicare in the case of medical and dental coverage and until the three-year anniversary of the Date of Termination in the case of all other insurance plans, with the projected cost to be based on the costs being incurred immediately prior to the Date of Termination (or the discontinuation of the benefits if later), as increased by 10% each year; and

(e) pay to the Executive, in a lump sum within thirty (30) days 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 thirty-six (36) months 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 (other than retirement plans, stock compensation plans or cash 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.

(f) 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.

(g) Notwithstanding any other provision contained in this Agreement, if the time period for making any cash payment under this Section 2 commences in one calendar year and ends in the succeeding calendar year, then the payment shall not be paid until the succeeding calendar year.

3. Payment of Additional Benefits under Certain Circumstances.

(a) 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” as defined in Section 280G(b)(2) of the Code (the “Initial Parachute Payment”), 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:

(i) 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

(ii) 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 taxes, employment-related taxes (including Social Security and Medicare taxes) and excise taxes on the payment provided under clause (i) above and on any payments under this clause (ii). In computing such tax allowance, the payment to be made under clause (i) 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 (i) above is made, and shall also reflect the phase-out of deductions and the ability to deduct certain of such taxes.

(b) The “Adjusted Excess Parachute Payment” shall equal the Initial Excess Parachute Payment plus the amounts paid pursuant to clauses (i) and (ii) of Section 2(a) above.

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 Adjusted 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.

(d) In each calendar year that the Executive receives payments of benefits that constitute a parachute amount, the Executive shall report on his 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 3 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 3) 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.

(e) Notwithstanding any other provision contained in this Agreement, if the time period for making any cash payment under this Section 3 commences in one calendar year and ends in the succeeding calendar year, then the payment shall not be paid until the succeeding calendar year.

4. Mitigation; Exclusivity of Benefits.

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 the Employers may hereafter merge or consolidate or to which 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 their 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:		President and Chief Executive Officer
		ESB Financial Corporation and ESB Bank
		600 Lawrence Avenue
		Ellwood City, Pennsylvania 16117

To the Executive:
		At the address last appearing on the
		personnel records of the Employers

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 and 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. In

addition, notwithstanding anything in this Agreement to the contrary, the Employers may amend in good faith any terms of this Agreement, including retroactively, in order to comply with Section 409A of the Code.

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 by 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 December 1, 2012; provided that on or prior to December 1, 2013 and each subsequent December 1st, 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 as of such December 1st 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, at least thirty (30) days prior to such December 1st, 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.

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.

14. Changes in Statutes or Regulations. If any statutory or regulatory 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.

15. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together will constitute one and the same instrument.

16. 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 the regulations promulgated thereunder, including 12 C.F.R. Part 359.

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 Prior Agreement between the Employers and the Executive, are hereby superseded and shall have no force or effect.

IN WITNESS WHEREOF, this Agreement has been executed as of the date first written above.


Attest:	ESB FINANCIAL CORPORATION

	By:
		Charlotte A. Zuschlag
		President and Chief Executive Officer

Attest:	ESB BANK

	By:
		Charlotte A. Zuschlag
		President and Chief Executive Officer

Attest:

	By:

EX-10.4 5 d442233dex104.htm FORM OF AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT Form of Amended and Restated Change in Control Agreement

Exhibit 10.4

[Form for SVPs]

AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT AMONG

ESB FINANCIAL CORPORATION, ESB BANK

AND

This AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT (this “Agreement”), dated as of the 20th day of November 2012, is among ESB Financial Corporation (the “Corporation”), ESB Bank, a Pennsylvania chartered savings bank and a wholly owned subsidiary of the Corporation (the “Bank”), and (the “Executive”). Any reference to the “Employers” shall mean both the Corporation and the Bank, and any reference to an “Employer” shall mean either the Corporation or the Bank, as the context requires.

WITNESSETH:

WHEREAS, the Employers desire to amend and restate the Prior Agreement in order to update and revise the agreement in several respects;

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 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, provided that the highest base salary and the highest cash bonus may be paid in separate years.

(b) Cause. Termination by the Employers of the Executive’s employment for “Cause” shall include 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.

(c) 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.

(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 death, 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.

(f) 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.

(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 based on the occurrence of any of the following events:

(ii) any material breach of this Agreement by the Employers, or

(iii) any material change in the geographic location at which the Executive must perform his services under this Agreement immediately prior to the Change in Control;

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.

(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 Cause, Disability or Retirement or by the Executive 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 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 Employers’ termination of the Executive’s employment for Cause or for death, which shall be effective immediately, and (iv) is given in the manner specified in Section 7 hereof.

(j) 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. Benefits Upon Termination. If the Executive’s employment by the Employers shall be terminated concurrently with or within twenty-four (24) months subsequent to a Change in Control by (i) the Employers other than for Cause, Disability or Retirement or as a result of the Executive’s death, or (ii) the Executive for Good Reason, then the Employers shall, subject to the provisions of Section 3 hereof, if applicable:

(a) pay to the Executive, in a lump sum as of the Date of Termination, a cash amount equal to two times the Executive’s Annual Compensation;

(b) maintain and provide for a period ending at the earlier of (i) twenty-four (24) 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 in which the Executive was participating immediately prior to the Date of Termination, in each case subject to Section 2 below; provided that any insurance premiums payable by the Employers or any successors pursuant to this Section 2(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;

(c) in the event that the continued participation of the Executive in any group insurance plan as provided in Section 2(b) is barred or would trigger the payment of an excise tax under Section 4980D of the Code, or during the period set forth in Section 2(b) any such group insurance plan is discontinued, then the Bank shall at its election either (i) arrange to provide the Executive with alternative benefits substantially similar to those which the Executive was entitled to receive under such group insurance plans immediately prior to the Date of Termination, provided that the alternative benefits do not trigger the payment of an excise tax under Section 4980D of the Code, or (ii) pay to the Executive within 10 business days following the Date of Termination (or within 10 business days following the discontinuation of the benefits if later) a lump sum cash amount equal to the projected cost to the Bank of providing continued coverage to the Executive until the two-year anniversary of the Date of Termination, with the projected cost to be based on the costs being incurred immediately prior to the Date of Termination (or the discontinuation of the benefits if later), as increased by 10% each year; and

(d) pay to the Executive, in a lump sum within thirty (30) days 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 twenty-four (24) months 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 (other than retirement plans, stock compensation plans or cash 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.

(e) The payment 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.

(f) Notwithstanding any other provision contained in this Agreement, if the time period for making any cash payment under this Section 2 commences in one calendar year and ends in the succeeding calendar year, then the payment shall not be paid until the succeeding calendar year.

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, then the payments and benefits pursuant to Section 2 hereof shall be reduced by the minimum amount 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. If the payments and benefits under Section 2 are required to be reduced, the cash severance shall be reduced first, followed by a reduction in the fringe benefits. 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 and paid for by the Employers. Such counsel shall promptly prepare the foregoing opinion, but in no event later than thirty (30) days from the Date of Termination, and may use such actuaries as such counsel deems necessary or advisable for the purpose. Nothing contained in this Section 3 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.


To the Employers:		President and Chief Executive Officer
		ESB Financial Corporation and ESB Bank
		600 Lawrence Avenue
		Ellwood City, Pennsylvania 16117

To the Executive:
		At the address last appearing on
		the personnel records of the Employers

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 and 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. In addition, notwithstanding anything in this Agreement to the contrary, the Employers may amend in good faith any terms of this Agreement, including retroactively, in order to comply with Section 409A of the Code.

10. Nature of Employment and Obligations.

11. Term of Agreement. This Agreement shall terminate three (3) years after December 1, 2012; provided that on or prior to December 1, 2013 and each subsequent December 1st, 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 as of such December 1st 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, at least thirty (30) days prior to such December 1st, 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.

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.

15. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together will constitute one and the same instrument.

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 Prior Agreement between the Employers and the Executive, are hereby superseded and shall have no force or effect.

[Signature page follows]

IN WITNESS WHEREOF, this Agreement has been executed as of the date first written above.


Attest:	ESB FINANCIAL CORPORATION

	By:
		Charlotte A. Zuschlag
		President and Chief Executive Officer

Attest:	ESB BANK

	By:
		Charlotte A. Zuschlag
		President and Chief Executive Officer

Attest:

	By: