exh104.htm


     

    
      

      

    

    Exhibit
      10.4

     

     

    
      AMENDED
        AND RESTATED

      CHANGE
        IN CONTROL SEVERANCE AGREEMENT BETWEEN

      PARKVALE
        SAVINGS BANK AND THOMAS R. ONDEK

      


      


      THIS
        AMENDED AND RESTATED CHANGE IN CONTROL SEVERANCE AGREEMENT (the “Agreement”),
        dated this 20th day of December 2007, between Parkvale Savings Bank (the
        “Bank”), a Pennsylvania-chartered stock savings bank and a wholly owned
        subsidiary of Parkvale Financial Corporation (the “Corporation”), and Thomas R.
        Ondek (the “Executive”).  The Bank, including any successor to the
        Bank by merger or otherwise, is referred to as the “Employer”.

      


      


      WITNESSETH

      


      WHEREAS,
        the Executive is presently an officer of the Employer, and the Executive,
        the
        Corporation and the Bank have previously entered into a change in control
        severance agreement originally effective as of December 21, 2006 (the “Prior
        Agreement”);

      


      WHEREAS,
        the Employer desires to amend and restate the Prior Agreement in order to
        make
        changes to comply with Section 409A of the Internal Revenue Code of 1986,
        as
        amended (the “Code”), as well as certain other changes;

      


      WHEREAS,
        the Employer desires to be ensured of the Executive’s continued active
        participation in the business of the Employer; and

      


      WHEREAS,
        in order to induce the Executive to remain in the employ of the Employer
        and in
        consideration of the Executive’s agreeing to remain in the employ of the
        Employer, the parties desire to specify the severance benefits which shall
        be
        due the Executive in the event that his employment with the Employer 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 Employer 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.

      


      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

      (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
        Employer.

      


      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

      (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 Employer, 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 Employer within ninety
        (90)
        days of the initial existence of the condition, describing the existence
        of such
        condition, and the Employer shall thereafter have the right to remedy the
        condition within thirty (30) days of the date the Employer received the written
        notice from the Executive.  If the Employer remedies 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 Employer does 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 Employer 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 Employer’s termination of the Executive’s
        employment for Cause, which shall be effective immediately, and (iv) is given
        in
        the manner specified in Section 7 hereof.

      


      (i)           
        Retirement.  “Retirement”
shall mean voluntary
        termination by the Executive in accordance with the
        Employer’s retirement policies, including early retirement, generally applicable
        to its salaried employees.

      


      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

      2.           
        Benefits Upon
        Termination.   If the Executive’s employment by the
        Employer shall be terminated subsequent to a Change in Control by (i) the
        Employer for other than Cause, Disability, Retirement or 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 a lump sum within five business days following the
        Date
        of Termination, a cash severance amount equal to two (2) times the Executive’s
        Annual Compensation;

      


      (b)           
        maintain and provide for a period ending at the earlier of (i) the expiration
        of
        the remaining term of this Agreement as of the Date of Termination or (ii)
        the
        date of the Executive’s full-time employment by another employer (provided that
        the Executive is entitled under the terms of such employment to benefits
        substantially similar to those described in this subparagraph (b)), at no
        cost
        to the Executive, the Executive’s continued participation in all group
        insurance, life insurance, health and accident insurance, and disability
        insurance offered by the Employer in which the Executive was participating
        immediately prior to the Date of Termination; provided that any insurance
        premiums payable by the Employer or any successors pursuant to this Section
        2(b)
        shall be payable at such times and in such amounts (except that the Employer
        shall also pay any employee portion of the premiums) as if the Executive
        was
        still an employee of the Employer, 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 Employer in any taxable year shall not affect
        the
        amount of insurance premiums required to be paid by the Employer in any other
        taxable year; and provided further that if the Executive’s participation in any
        group insurance plan is barred, the Employer shall either arrange to provide
        the
        Executive with insurance benefits substantially similar to those which the
        Executive was entitled to receive under such group insurance plan or, if
        such
        coverage cannot be obtained, pay a lump sum cash equivalency amount within
        thirty (30) days following the Date of Termination based on the annualized
        rate
        of premiums being paid by the Employer as of the Date of Termination;
        and

      


      (c)           
        pay to the Executive, in a lump sum within five business days following the
        Date
        of Termination, a cash amount equal to the projected cost to the Employer
        of
        providing benefits to the Executive for the expiration of the remaining term
        of
        this Agreement as of the Date Termination pursuant to any other employee
        benefit
        plans, programs or arrangements offered by the Employer in which the Executive
        was entitled to participate immediately prior to the Date of Termination
        (excluding (y) stock benefit plans of the Employer and (z) cash incentive
        compensation included in Annual Compensation), with the projected cost to
        the
        Employer 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.

      


      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 Corporation and the
        Bank,
        would constitute a “parachute payment” under Section 280G of the Code, then the
        payments and benefits payable by the Employer pursuant to Section 2 hereof
        shall
        be reduced by the minimum amount necessary to result in no portion of the
        payments and benefits payable by the Employer under Section 2 being
        non-deductible to the Employer 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 are required to be reduced, the cash severance
        shall
        be reduced first, followed by a reduction in the fringe benefits to be provided
        in kind. 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
        counsel selected by the Employer and paid by the Employer.  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
        under any circumstances other than as specified in this Section 3, or a
        reduction in the payments and benefits specified in Section 2 below
        zero.

      


      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

      4.             
        Mitigation; Exclusivity of Benefits.

      


      (a)           
        The Executive shall not be required to mitigate the amount of any benefits
        hereunder by seeking other employment or otherwise, nor shall the amount
        of any
        such benefits be reduced by any compensation earned by the Executive as a
        result
        of employment by another employer after the Date of Termination or otherwise,
        except as set forth in Section 2(b) 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.

      


      5.           
        Withholding.  All
        payments required to be made by the Employer hereunder to the Executive shall
        be
        subject to the withholding of such amounts, if any, relating to tax and other
        payroll deductions as the Employer may reasonably determine should be withheld
        pursuant to any applicable law or regulation.

      


      6.           
        Assignability.  The
        Employer 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 Employer may hereafter merge or consolidate or to which the Employer
        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 Employer hereunder as fully as if it
        had
        been originally made a party hereto, but may not otherwise assign this Agreement
        or rights and obligations 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:

      


      
        	 	
                Corporate
                  Secretary

              
	
                To
                  the Bank:

              	
                Parkvale
                  Savings Bank

              
	 	
                4220
                  William Penn Highway

              
	 	
                Monroeville,
                  Pennsylvania 15146

              
	 	 
	
                To
                  the Executive:

              	
                Thomas
                  R. Ondek

              
	 	
                At
                  the address last appearing on the

              
	 	
                personnel
                  records of the Employer

              


      

       

      
 

      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

      8.           
        Amendment;
        Waiver.  No provisions of this Agreement may be modified,
        waived or discharged unless such waiver, modification or discharge is agreed
        to
        in writing and signed by the Executive and such officer or officers as may
        be
        specifically designated by the Board of Directors of the Employer to sign
        on its
        behalf; provided, however, that if the Employer determines, after a review
        of
        the final regulations issued under Section 409A of the Code and all applicable
        Internal Revenue Service guidance, that this Agreement should be further
        amended
        to avoid triggering the tax and interest penalties imposed by Section 409A
        of
        the Code, the Employer may amend this Agreement to the extent necessary to
        avoid
        triggering the tax and interest penalties imposed by Section 409A of the
        Code.  No waiver by any party hereto at any time of any breach by any
        other party hereto of, or compliance with, any condition or provision of
        this
        Agreement to be performed by such other party shall be deemed a waiver of
        similar or dissimilar provisions or conditions at the same or at any prior
        or
        subsequent time.

      


      9.           
        Governing
        Law.  The validity, interpretation, construction and
        performance of this Agreement shall be governed by the laws of the United
        States
        where applicable and otherwise 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 Employer and the Executive, and
        the
        Employer 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 Employer 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 Employer
        hereunder, such right shall be no greater than the right of any unsecured
        general creditor of the Employer.

      


      11.           
        Term of
        Agreement.   The term of this Agreement shall terminate on
        December 31, 2010, unless extended as set forth below.  Commencing on
        January 1, 2009 and each subsequent January 1st, the term of this Agreement
        shall extend for an additional year until such time as the Board of Directors
        of
        the Employer or the Executive give notice in accordance with the terms of
        Section 7 hereof of its or his election, respectively, not to extend the
        term of
        this Agreement. As a consequence, subsequent to January 1, 2009, the remaining
        term of this Agreement will stay between two and three years unless notice
        of
        non-renewal is given.  Such written notice of the election not to
        extend must be given not less than thirty (30) days prior to any such January
        1st.  If any party gives timely notice that the term will not be
        extended as of any January 1st, 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.

      


      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

      

      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 the terms 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 provisions of this Agreement,
        which shall remain in full force and effect.

      


      14.           
        Counterparts.  This
        Agreement may be executed in one or more counterparts, each of which shall
        be
        deemed to be an original but all of which together will constitute one and
        the
        same instrument.

      


      15.           
        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.

      


      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 Federal Deposit Insurance Act (12 U.S.C. Section
        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 Employer and the Executive with respect to the matters agreed
        to
        herein.  Any prior agreements between the Corporation, the Bank and
        the Executive with respect to the matters agreed to herein, including without
        limitation the Prior Agreement, are hereby superseded and shall have no force
        or
        effect.

      


      
        
          
          

        

        
          7

          
            

          

        

        
          
          

        

      

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

      


      
        	
                Attest:

              	
                PARKVALE
                  SAVINGS BANK

              
	 	 
	
                /s/Deborah
                  M. Cardillo

              	
                 

              	
                By:

              	
                /s/
                  Robert J. McCarthy, Jr.

              
	Deborah
                M. Cardillo, Corporate Secretary	 	
                Robert
                  J. McCarthy, Jr.

              
	 	 	
                President
                  and Chief Executive Officer

              
	 	 
	
                Attest:

              	
                EXECUTIVE

              
	 	 
	
                /s/
                  Deborah M. Cardillo

              	
                 

              	
                By:

              	
                /s/
                  Thomas R. Ondek

              
	
                Deborah
                  M. Cardillo, Corporate Secretary

              	 	
                Thomas
                  R. Ondek

              


      

    

     

     

    
      
        
        

      

      
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