exhibit10-4.htm


     

    
      

      

    

    
      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 2007, 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 (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 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, 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:

      


      (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.

       

      
 

      
        
          
          

        

        
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      (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, 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 within eighteen (18) 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 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
        insurance, and disability insurance 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

       

      
 

      
        
          
          

        

        
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      (c)           pay
        to the Executive, in a lump sum as of 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 eighteen (18) 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.

      


      (d)           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.

      


      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.

      


      (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.

       

      
 

      
        
          
          

        

        
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      (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 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:

                	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 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.

       

      
 

      
        
          
          

        

        
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      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, 2007; provided that on or prior to December 1, 2008 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 regulation 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 but 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 12 C.F.R. Part 359.

       

      
 

      
        
          
          

        

        
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      17.           Regulatory
        Actions. The following provisions shall be applicable to the parties to
        the extent that they are required to be included in agreements between a
        savings
        association and its employees pursuant to Section 563.39(b) of the Regulations
        Applicable to All Savings Associations, 12 C.F.R. §563.39(b), or any successor
        thereto, and shall be controlling in the event of a conflict with any other
        provision of this Agreement.

      


      (a)           If
        the Executive is suspended from office and/or temporarily prohibited from
        participating in the conduct of the Employers’ affairs pursuant to notice served
        under Section 8(e)(3) or Section 8(g)(1) of the Federal Deposit Insurance
        Act
        (“FDIA”)(12 U.S.C. §§1818(e)(3) and 1818(g)(1)), the Employers’ obligations
        under this Agreement shall be suspended as of the date of service, unless
        stayed
        by appropriate proceedings. If the charges in the notice are dismissed, the
        Employers may, in their discretion: (i) pay the Executive all or part of
        the
        compensation withheld while their obligations under this Agreement were
        suspended, and (ii) reinstate (in whole or in part) any of their obligations
        which were suspended.

      


      (b)           If
        the Executive is removed from office and/or permanently prohibited from
        participating in the conduct of the Employers’ affairs by an order issued under
        Section 8(e)(4) or Section 8(g)(1) of the FDIA (12 U.S.C. §§1818(e)(4) and
        (g)(1)), all obligations of the Employers under this Agreement shall terminate
        as of the effective date of the order, but vested rights of the Executive
        and
        the Employers as of the date of termination shall not be affected.

      


      (c)           If
        the Bank is in default, as defined in Section 3(x)(1) of the FDIA (12 U.S.C.
        §1813(x)(1)), all obligations under this Agreement shall terminate as of the
        date of default, but vested rights of the Executive and the Employers as
        of the
        date of termination shall not be affected.

      


      (d)           All
        obligations under this Agreement shall be terminated pursuant to 12 C.F.R.
        §563.39(b)(5), except to the extent that it is determined that continuation
        of
        the Agreement for the continued operation of the Employers is necessary:
        (i) by
        the Director of the OTS, or his/her designee, at the time the Federal Deposit
        Insurance Corporation (“FDIC”) enters into an agreement to provide assistance to
        or on behalf of the Bank under the authority contained in Section 13(c) of
        the
        FDIA (12 U.S.C. §1823(c)); or (ii) by the Director of the OTS, or his/her
        designee, at the time the Director or his/her designee approves a supervisory
        merger to resolve problems related to operation of the Bank or when the Bank
        is
        determined by the Director of the OTS to be in an unsafe or unsound condition,
        but vested rights of the Executive and the Employers as of the date of
        termination shall not be affected.

      


      18.           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]

       

      
 

      
        
          
          

        

        
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      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:	 
	 	
                   

                	
                   

                
	 	 	
                   

                


        

      

    

     

     

     

    
      
        
        

      

      
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