AMENDED AND RESTATED
CHANGE IN CONTROL SEVERANCE AGREEMENT AMONG
PARKVALE FINANCIAL CORPORATION, PARKVALE
SAVINGS BANK AND TIMOTHY G. RUBRITZ
THIS
AMENDED AND RESTATED CHANGE IN CONTROL SEVERANCE AGREEMENT
(the “Agreement”), dated as of the 20th day of
December 2007 (the “Effective Date”), is among
Parkvale Financial Corporation, a Pennsylvania corporation
(the “Corporation”), Parkvale Savings Bank, a
Pennsylvania-chartered stock savings bank and a wholly owned
subsidiary of the Corporation (the “Bank”), and
Timothy G. Rubritz (the
“Executive”). The Corporation and the
Bank, including any successors to the Corporation or the Bank
by merger or otherwise, are collectively referred to as the
“Employers”.
WITNESSETH
WHEREAS,
the Executive is presently an officer of each of the
Employers, and the Executive and the Employers have previously
entered into a change in control severance agreement
originally effective as of January 1, 2000 and amended and
restated as of December 15, 2005 (the “Prior
Agreement”);
WHEREAS, the Employers
desire to amend and restate the Prior Agreement in order to
make changes to comply with Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”), as
well as certain other changes;
WHEREAS,
the 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, intending to be legally bound hereby and in
consideration of the mutual agreements herein contained, and
upon the other terms and conditions hereinafter provided, 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
aggregate base salary and cash incentive compensation paid to
the Executive by the Employers or any subsidiary thereof
during the calendar year in which the Date of Termination
occurs (determined on an annualized basis) or the calendar
year immediately preceding the calendar year in which the Date
of Termination occurs, whichever year is higher.
(b)
Cause.
Termination of the Executive’s employment for
“Cause” shall mean termination because (i) the
Executive intentionally engages in dishonest conduct in
connection with his performance of services for the
Corporation or the Bank resulting in his conviction of a
felony; (ii) the Executive is convicted of, or pleads guilty
or nolo
contendere to, a felony or any crime involving moral
turpitude; (iii) the Executive willfully fails or refuses to
perform his duties under this Agreement and fails to cure such
breach within fifteen (15) days following written notice
thereof from the Corporation or the Bank; (iv) the Executive
breaches his fiduciary duties to the Corporation or the Bank
for personal profit; or (v) the Executive willfully breaches
or violates any law, rule or regulation (other than traffic
violations or similar offenses), or final cease and desist
order in connection with his performance of services for the
Corporation or the Bank, and fails to cure such breach or
violation within fifteen (15) days following written notice
thereof from the Corporation or the Bank. For
purposes of this section, no act or failure to act on the part
of the Executive shall be considered “willful”
unless it is done, or omitted to be done, by the Executive in
bad faith or without reasonable belief that the Executive
= s action or omission was in
the best interests of the Corporation or the
Bank. Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the
Board of Directors of the Corporation or the Bank (the
“Boards”) or based upon the written advice of
counsel for the Corporation or the Bank shall be conclusively
presumed to be done, or omitted to be done, by the Executive
in good faith and in the best interests of the Corporation or
the Bank. The cessation of employment by the
Executive shall not be deemed to be for “cause”
within the meaning of this section unless and until there
shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of
three-fourths of the non-employee members of the Boards at a
meeting of the Boards called and held for such purpose (after
reasonable notice is provided to the Executive and the
Executive is given an opportunity, together with counsel, to
be heard before the Boards), finding that, in the good faith
opinion of the Boards, the Executive is guilty of the conduct
described in this section, and specifying the particulars
thereof in detail.
(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)
Date of
Termination. “Date of
Termination” shall mean (i) if the Executive’s
employment is terminated for Cause, the date on which the
Notice of Termination is given, and (ii) if the
Executive’s employment is terminated for any other
reason, the date specified in the Notice of
Termination.
(e)
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.
(f)
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:
(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;
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.
(g)
IRS.
“IRS” shall mean the Internal Revenue
Service.
(h)
Notice of
Termination. Any purported termination of
the Executive’s employment by the Employers 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” sh
