EXHIBIT 10(o)
AGREEMENT AMONG
ESB FINANCIAL
CORPORATION
AND ESB BANK,
F.S.B.
AND BONITA L.
WADDING
AGREEMENT, dated this 1st day of
January 2004, among ESB Financial Corporation (the
“Corporation”), and ESB Bank, F.S.B., a Federally
chartered savings bank and a wholly owned subsidiary of the
Corporation and Bonita L. Wadding (the “Executive”).
Hereinafter, any reference to the “Employers” shall
mean both the Corporation and ESB Bank and any reference to an
“Employer” shall mean either the Corporation or ESB
Bank, as the context requires.
WITNESSETH:
WHEREAS, the Executive is presently
an officer of the Employers; and
WHEREAS, the Employers desire to be
ensured of the Executive’s continued active participation in
the business of the Employers; and
WHEREAS, in order to induce the
Executive to remain in the employ of the Employers and in
consideration of the Executive’s agreeing to remain in the
employ of the Employers, the parties desire to specify the
severance benefits which shall be due the Executive in the event
that her employment with the Employers is terminated under
specified circumstances;
NOW THEREFORE, in consideration of
the premises and the mutual agreements herein contained, the
parties hereby agree as follows:
1. Definitions . The
following words and terms shall have the meanings set forth below
for the purposes of this Agreement:
(a) Annual Compensation . The
Executive’s “Annual Compensation” for purposes of
this Agreement shall be deemed to mean the highest level of base
salary and cash bonus paid to the Executive by the Employers or any
subsidiary thereof during any of the three calendar years ending
prior to the calendar year in which the Date of Termination
occurs.
(b) Cause. Termination 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 or material breach of any provision of this
Agreement.
(c) Change in Control of the
Employer . “Change in Control of the Employer”
shall mean a change in control of a nature that would be required
to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended
(“Exchange Act”), or any successor thereto, whether or
not any security of the Employer is registered under the Exchange
Act; provided that, without limitation, such a change in control
shall be deemed to have occurred if (i) any “person”
(as such term is used in Section 13(d) and 14(d) of the Exchange
Act) is or becomes the “beneficial owner” (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Employer representing 25% or more of the combined
voting power of the Employer’s then outstanding securities;
or (ii) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board of Directors
of the Employer cease for any reason to constitute at least a
majority thereof unless the election, or the nomination for
election by stockholders, of each new director was approved by a
vote of at least two-thirds of the directors then still in office
who were directors at the beginning of the period.
(d) Code . Code shall mean
the Internal Revenue Code of 1986, as amended.
(e) Date of Termination .
“Date of Termination” shall mean (i) if the
Executive’s employment is terminated for Cause or for
Disability, the date specified in the Notice of Termination, and
(ii) if the Executive’s employment is terminated for any
other reason, the date on which a Notice of Termination is given or
as specified in such Notice.
(f) Disability . Termination
by the Employer of the Executive’s employment based on
“Disability” shall mean termination because of any
physical or mental impairment which qualifies the Executive for
disability benefits under the applicable long-term disability plan
maintained by the Employers or any subsidiary or, if no such plan
applies, which would qualify the Executive for disability benefits
under the Federal Social Security System.
(g) Good Reason . Termination
by the Executive of the Executive’s employment for
“Good Reason” shall mean termination by the Executive
based on:
(i) Without the Executive’s
express written consent, the assignment by the Employer to the
Executive of any duties which are materially inconsistent with the
Executive’s positions, duties, responsibilities and status
with the Employer immediately prior to a Change in Control of the
Employer, or a material change in the Executive’s reporting
responsibilities, titles or offices as an employee and as in effect
immediately prior to such a Change in Control, or any removal of
the Executive from or any failure to re-elect the Executive to any
of such responsibilities, titles or offices, except in connection
with the termination of the Executive’s employment for Cause,
Disability or Retirement or as a result of the Executive’s
death or by the Executive other than for Good Reason;
(ii) Without the Executive’s
express written consent, a reduction by the Employers in the
Executive’s base salary as in effect on the date of the
Change in Control of the Employer or as the same may be increased
from time to time thereafter or a material reduction in the package
of fringe benefits provided to the Executive;
(iii) Any purported termination of
the Executive’s employment for Cause, Disability or
Retirement which is not effected pursuant to a Notice of
Termination satisfying the requirements of paragraph (i) below;
or
(iv) The failure by the Employer to
obtain the assumption of and agreement to perform this Agreement by
any successor as contemplated in Section 6 hereof.
(h) IRS . IRS shall mean the
Internal Revenue Service.
(i) Notice of Termination .
Any purported termination by the Employer for Cause, Disability or
Retirement or by the Executive for Good Reason shall be
communicated by written “Notice of Termination” to the
other party hereto. For purposes of this Agreement, a “Notice
of Termination” shall mean a notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii)
sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive’s
employment under the provision so indicated, (iii) specifies a Date
of Termination, which shall be not less than thirty (30) nor more
than ninety (90) days after such Notice of Termination is given,
except in the case of the Employer’s termination of the
Executive’s employment for Cause, and (iv) is given in the
manner specified in Section 7 hereof.
(j) Retirement . Termination
by the Employer of the Executive’s employment based on
“Retirement” shall mean voluntary termination by the
Executive in accordance with the Employers’ retirement
policies, including early retirement, generally applicable to their
salaried employees.
2. Benefits Upon Termination
. If the Executive’s employment by the Employers shall be
terminated within eighteen months (18) subsequent to a Change in
Control of the Employer by (i) the Employer 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 Employer
shall, subject to the provisions of Section 3 hereof, if
applicable:
(a) pay to the Executive, in 18
equal monthly installments beginning with the first business day of
the month following the Date of Termination, a cash amount equal to
1.5 times the Executive’s Annual Compensation; and
(b) maintain and provide for a
period ending at the earlier of (i) eighteen (18) months after the
Date of Termination or (ii) the date of the Executive’s
full-time employment by another employer (provided that the
Executive is entitled under the terms of such employment to
benefits substantially similar to those described in this
subparagraph (b)), at no cost to the Executive, the
Executive’s continued participation in all group insurance,
life insurance, health and accident, disability and other employee
benefit plans, programs and arrangements in which the Executive was
entitled to participate immediately prior to the Date of
Termination (other than retirement plans or stock compensation
plans of the Employers), provided that in the event that the
Executive’s participation in any plan, program or
arran
