EXHIBIT 10.5
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
THIS NON-COMPETITION AND CONFIDENTIALITY AGREEMENT (this "Agreement")
is made as of the 1st day of April, 2004 by and between WESBANCO BANK, INC. (the
"Company") and XXXXXXX X. XXXXXXXXX (the "Employee").
WHEREAS, Employee is employed by Cornerstone Bank (the "Bank")
pursuant to an Employment Agreement dated February 13, 2002, as amended by
Agreements dated October 28, 2003 and January 16, 2004 (collectively the
"Agreements"), and
WHEREAS, the Bank is a wholly owned subsidiary of Western Ohio
Financial Corporation ("WOFC") which has entered into an Agreement and Plan of
Merger dated the 1st day of April, 2004, with Wesbanco, Inc. ("Wesbanco") which
provides for the merger (the "Bank Merger") of the Bank with and into Wesbanco's
banking subsidiary, the Company, and
WHEREAS, effective upon consummation of such Bank Merger, the parties
desire to mutually terminate the Agreements, enter into a new two (2) year
Employment Agreement in the form attached hereto as Exhibit A and provide for a
non-competition and confidentiality agreement to insure the competitive position
of the Company subsequent to said Bank Merger.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants set forth herein, and the further payment of the sum of One Hundred
Fifteen Thousand Five Hundred Dollars ($115,500.00) to be paid as of the
effective date of the Bank Merger whereupon this Agreement shall become
effective, the parties to this Agreement agree as follows:
1. ACKNOWLEDGMENTS. The Employee acknowledges that: (a) the Company is
presently engaged in the following businesses: (i) financial services, real
estate, commercial and consumer lending and related financial services and
products; and (ii) other related products and services (collectively, the
"Present Business of the Company"); (b) as a key employee of the Company, the
Employee has been and will continue to be in a position of trust and confidence
in which the Employee has been and will learn of, have access to, and develop
proprietary, confidential, and trade secret information related to the business
and operation of the Company; (c) the Company would be seriously and irreparably
injured by unauthorized or inappropriate disclosure of any such information; (d)
the documents and information regarding the Company's customers, suppliers,
services, products, techniques, methods of operation, business plans and
forecasts, sales, pricing, and costs are highly confidential and constitute
trade secrets; (e) the Employee has developed and will further develop
relationships of special trust and confidence with the Company's customers and
its employees, and such relationships of trust and confidence are of great value
and importance to the Company and are for the Company's exclusive benefit; (f)
in exchange for the covenants and other promises made by the Employee in this
Agreement the Employee has received valuable rights; (g) the Employee has read
and understands the provisions of this Agreement and the Employee has been given
an opportunity for the Employee's legal counsel to review this Agreement; and
(h) the provisions of this Agreement are reasonable.
2. DISCLOSURE OF CONFIDENTIAL INFORMATION. Confidential Information
(as defined below) shall at all times remain the property of the Company. The
Employee will safeguard and maintain on the premises of the Company, to the
extent possible in the performance of the Employee's work for the Company, all
documents and things that contain or
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embody Confidential Information. Except as required as part of the Employee's
duties to the Company, the Employee will not, during the Employee's employment
by the Company or thereafter, directly or indirectly use, divulge, disseminate,
disclose, lecture upon, or publish any Confidential Information without having
first obtained written permission from the Company to do so. Upon termination of
employment, or upon request by the Company, the Employee will deliver to the
Company all materials containing Confidential Information then in the Employee's
possession or under the Employee's control.
"Confidential Information" shall mean all information disclosed to the
Employee or known by the Employee as a consequence of or through the Employee's
employment by the Company, which is not generally known in the industry in which
the Company and/or an affiliate (i.e., another company the majority interest of
which is owned by the Company or by a direct or indirect parent or subsidiary of
the Company) is or may become engaged, about the Company's or an affiliates'
business, products, processes, and services, including but not limited to
information relating to research, development, inventions, computer program
designs, flow charts, source and object codes, products and services under
development, pricing and pricing strategies, marketing and selling strategies,
power generating, servicing, purchasing, accounting, engineering, costs and
costing strategies, sources of supply, customer lists, customer requirements,
business methods or practices, training and training programs, and related
documentation. It includes, but is not limited to, proprietary information and
trade secrets of the Company and its affiliates. It will be presumed that
information supplied to the Company and its affiliates from outside sources is
Confidential Information unless and until it is designated otherwise.
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3. RESTRICTIONS ON COMPETITION. The Employee covenants and agrees that
while employed by the Company and for a period of one (1) year from and after
the effective date of the Bank Merger, whichever is longer, the Employee shall
not engage, directly or indirectly, whether as principal or as agent, officer,
director, employee, consultant, shareholder, independent contractor, or
otherwise, alone or in association with any other domestic or foreign person,
corporation or other entity, in a Competing Business (as defined below) located
in the state of Ohio and which maintains an office within a radius of fifty (50)
miles of the City of Springfield; provided, however, that the Employee shall
have the right to accept employment with a Competing Business whose business is
diversified (the "Diversified Business"), if the employment is with a part of
the Diversified Business which is not a Competing Business and if, prior to
accepting such employment, the Employee furnishes written assurances reasonably
satisfactory to the Company from the Diversified Business and from the Employee
that the Employee will not render services directly or indirectly in connection
with any Competing Business. The term "Competing Business" shall mean any
person, corporation, or other entity engaged in (i) the Present Business of the
Company (as defined in Section 1 of this Agreement), or (ii) any other business
in which the Company or any of its subsidiaries was engaged, or with respect to
which the Company or any of its subsidiaries had taken substantial steps to
engage in, as of the Employee's date of termination of employment. The Employee
acknowledges that the Company conducts or intends to conduct business within the
geographic area specified and, therefore, the Employee acknowledges that this
restriction is reasonable and necessary to protect Company's business and that
it will not prevent the Employee's gainful employment by others.
4. SOLICITATION OF CUSTOMERS. The Employee covenants and agrees that
while employed by the Company, and for a period of one (1) year from and after
the effective
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date of the Bank Merger, whichever is longer, the Employee shall not, in any
manner adverse to the Company, directly or indirectly, solicit the business of,
do business with, or otherwise deal with any Customer. The term "Customer" shall
mean any customer, supplier, or prospective customer or supplier of the Company
or an affiliate of the Company with whom the Employee has or had direct or
indirect contact or about whom the Employee may have acquired any knowledge
while employed by the Company.
5. SOLICITATION OF EMPLOYEES. During the Employee's employment, and
for a period of one (1) year from and after the effective date of the Bank
Merger, whichever is longer, the Employee shall not, directly or indirectly,
solicit the services of any employee of the Company, induce such employees to
terminate their employment, or otherwise deal in a manner adverse to the Company
with respect to such employees. If, during the Employee's employment, the
Employee is approached or contacted by any employee or former employee of the
Company suggesting, proposing, recruiting or inducing the Employee to terminate
employment with the Company, the Employee shall notify the Company immediately
in writing.
6. OWNERSHIP OF INTELLECTUAL PROPERTY. The Employee agrees that all
inventions, improvements, developments and/or discoveries (whether or not
patentable), and all works of authorship (whether or not copyrightable)
(hereinafter collectively "Intellectual Property"), which are conceived of,
created, or made within the scope of the Employee's employment by the Company,
whether solely or jointly with others, shall be the sole and exclusive property
of the Company. The Employee further agrees to promptly and fully disclose all
such Intellectual Property and to execute, acknowledge, and deliver, upon
request of the Company and without further compensation, either during or
subsequent to employment, all instruments which are desirable or necessary to
prosecute an application for and to acquire,
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maintain, and enforce all patents, copyrights or registrations covering such
Intellectual Property in all countries. Moreover, the Employee hereby conveys,
assigns, and transfers the Employee's entire right, title, and interest in and
to such Intellectual Property to the Company and otherwise agrees to cooperate
as necessary to perfect the Company's rights and ownership to such Intellectual
Property. Upon termination of employment, or upon request by the Company, the
Employee will deliver to the Company all materials relating to Intellectual
Property then in the Employee's possession or under the Employee's control.
7. RIGHTS AND REMEDIES UPON BREACH. If the Employee breaches, or
threatens to breach, any material term or condition of this Agreement, then the
Company shall have the following rights and remedies, each of which shall be
independent of the other and severally enforceable, and all of which rights and
remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Company under law or equity:
(a) SPECIFIC PERFORMANCE. The right and remedy to have all
provisions of this Agreement specifically enforced by any court having
equity jurisdiction, including obtaining an injunction to prevent any
continuing violation of this Agreement; the Employee acknowledges that the
Employee's services to the Company are of a unique character and have a
special value to the Company, that any such breach or threatened breach
will cause irreparable injury to the Company, and that money damages will
be difficult to ascertain and will not provide an adequate remedy to the
Company.
(b) ACCOUNTING. The right and remedy to require the Employee to
account for and pay over to the Company all compensation,
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profits, monies, accruals, increments, or other benefits derived or
received by the Employee as a result of any transactions constituting a
breach of any material provision of this Agreement.
(c) DAMAGES, COSTS, AND ATTORNEY FEES. If the Employee is found
to have breached this Agreement by a court, the Employee shall be liable
for and agree to pay the Company: (i) all damages suffered by the Company
as a result of the breach, and (ii) all costs and reasonable attorney fees
and costs incurred by the Company to enforce its rights under this
Agreement.
8. OBLIGATIONS SURVIVE TERMINATION OF EMPLOYMENT. The termination of
the Employee's employment for whatever reason shall not impair or relieve the
Employee of any of the Employee's obligations under this Agreement which, by
their express terms or by implication, extend beyond the term of the Employee's
employment.
9. BINDING EFFECT AND ASSIGNABILITY. This Agreement may not be
assigned by either party without the prior written consent of the other party,
except that in the event Company should undergo any change in ownership or
change in structure or control, or should Company transfer some or all of its
assets to another entity, this Agreement may be assigned by Company without the
Employee's further consent to any company, business, partnership, individual or
entity, and that the Employee will continue to remain bound by this Agreement.
Subject to the foregoing, this Agreement shall be binding upon and inure to the
benefit of the parties and their respective heirs, legatees, devisees, personal
representatives, successors and assigns.
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10. NOTICE TO NEW EMPLOYER AND NOTICE TO THE COMPANY. The Employee
agrees that, prior to the commencement of any new employment, the Employee will
furnish the new employer with a copy of this Agreement. The Employee also agrees
that the Company may advise any new or prospective employer of the Employee of
the existence and terms of this Agreement and furnish the employer with a copy
of this Agreement. Accordingly, the Employee agrees to notify the Company prior
to the commencement of any new employment of the name of the new employer.
11. AUTHORIZATION TO MODIFY RESTRICTIONS. It is the intention of the
parties that the provisions of this Agreement shall be enforceable to the
fullest extent permissible by law, and that the unenforceability of any
provision, in whole or in part, shall not render unenforceable, or impair, the
remaining parts and provisions of this Agreement. If any provision of this
Agreement shall be deemed unenforceable, in whole or in part, this Agreement
shall be deemed amended to delete or modify the offending part and to alter the
Agreement to render it valid and enforceable. Should a court determine that the
character, duration, or geographical scope of any covenant of this Agreement is
unreasonable in light of the circumstances as they then exist, then it is the
intention and the agreement of the parties that this Agreement shall be
construed by the court so as to impose only those restrictions on the conduct of
the Employee which are reasonable in light of the circumstances as they then
exist and as are necessary to assure the Company of the intended benefit of this
Agreement.
12. TOLLING. The periods of time set forth in Section 3, 4 and 5 of
this Agreement shall be extended, at the option of the Company, for a period of
time equal to all periods during which the Employee is or was in violation of
such provision and to extend the
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restricted period to run from the date of any injunction which may be issued
against the Employee to enable the Company to receive the full benefit of these
provisions.
13. WAIVER. Waiver of any term or condition of this Agreement by any
party shall not be construed as a waiver of a subsequent breach or failure of
the same term or condition, or as a waiver of any other term or condition of
this Agreement.
14. GOVERNING LAW. This Agreement and all determinations made and
actions taken pursuant to this Agreement shall be governed by the laws of the
State of Ohio other than the conflict of laws provisions of such laws, and shall
be construed in accordance therewith.
15. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. The Company and
the Employee shall be deemed to have expressly agreed and consented to the
personal jurisdiction of the United States District Court for the Southern
District of Ohio, Western Division, with respect to any dispute or controversy
related to, arising under, or in connection with this Agreement. The Company and
the Employees shall also be deemed to have expressly agreed that such courts are
convenient forums for the parties to any such controversy or dispute and for any
potential witnesses and that process issued out of any such court or in
accordance with the rules of practice of such court may be served by mail or
other forms of substituted service to the Company at the address of its
principal executive office and to the Employee at his or her last known address
as reflected in the Company's records.
16. RECISION OF AGREEMENTS. Upon the effective date of the Bank
Merger, the payment of the lump sum payment described herein and the execution
of the Employment Agreement attached hereto as Exhibit A, the parties hereto
acknowledge and agree that the Agreements shall be rescinded in their entirety
and be of no further form or effect.
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17. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements and
understandings.
IN WITNESS WHEREOF, Company has caused these presents to be signed and
its corporate seal to be hereto affixed, and Employee has hereto affixed his
signature and seal, at Springfield, Ohio, as of the day and year first above
written.
COMPANY:
WESBANCO BANK, INC.
BY /s/ Xxxx X. Xxxxxxx
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ITS President
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
XXXXXXX X. XXXXXXXXX
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