exh102.htm


    
      

      

    

    Exhibit
      10.2

     

    
      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.

      


      
        
          
          

        

        
          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 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” 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 Employers’ 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.

      


      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

      (i)           
        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 subsequent to a Change in Control by (i) the
        Employers for other than Cause, Disability, Retirement or 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 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 Employers in which the Executive was participating
        immediately prior to the Date of Termination; 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; and provided further that if the
        Executive’s participation in any group insurance plan is barred, the Employers
        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 Employers
        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 Employers
        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 Employers in which the Executive
        was entitled to participate immediately prior to the Date of Termination
        (excluding (y) stock benefit plans of the Employers and (z) cash incentive
        compensation included in Annual Compensation), 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.

      


      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 payable by the Employers 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 Employers under Section 2 being
        non-deductible to 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 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 Employers and paid 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 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 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 and obligations hereunder
        in whole, but not in part, to any corporation, bank or other entity with
        or into
        which either of the Employers may hereafter merge or consolidate or to which
        either of 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 and obligations
        hereunder.  The Executive may not assign or transfer this Agreement or
        any rights or obligations hereunder.

      


      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

      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 Corporation:

              	
                Corporate
                  Secretary

              
	 	
                Parkvale
                  Financial Corporation

              
	 	
                4220
                  William Penn Highway

              
	 	
                Monroeville,
                  Pennsylvania 15146

              
	 	 
	
                To
                  the Bank:

              	
                Corporate
                  Secretary

              
	 	
                Parkvale
                  Savings Bank

              
	 	
                4220
                  William Penn Highway

              
	 	
                Monroeville,
                  Pennsylvania 15146

              
	 	 
	
                To
                  the Executive:

              	
                Timothy
                  G. Rubritz

              
	 	
                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; provided, however, that if the Employers determine, 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 Employers 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 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.

      


      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

      

      (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.   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 Boards of Directors
        of the Employers or the Executive give notice in accordance with the terms
        of
        Section 7 hereof of their 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.

      


      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. §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.  Any prior agreements between the Employers 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
                  FINANCIAL CORPORATION

              
	 	 	 
	
                /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:

              	 	
                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

              
	 	 	 
	
                Witness:

              	 	
                EXECUTIVE

              
	 	 	 
	
                /s/
                  Deborah M. Cardillo

              	 	By: 	
                /s/
                  Timothy G. Rubritz

              
	
                Deborah
                  M. Cardillo, Corporate Secretary

              	 	 	
                Timothy
                  G. Rubritz

              


      

       

    

     

     

     

    
      
        
        

      

      
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