Exhibit 10.20
SEPARATION AGREEMENT AND RELEASE
AND WAIVER OF CLAIMS
This AGREEMENT AND RELEASE (the "Agreement") made this 2nd day of May,
2002, by and between XXXXXX X. XXXXXX (the "Employee") and WESBANCO, INC.
(the "Employer").
W I T N E S S E T H
WHEREAS, the Employee was an Executive Vice President with the
Employer; and
WHEREAS, the Employee and Employer desire to have a written agreement
stating the terms applicable to the end of the employment relationship, and
resolving and settling any and all actual or possible differences,
disputes, or claims between them, including, but not limited to, those
arising from or relating to the Employee's voluntary separation from
employment effective June 3, 2002, and the end of that relationship; and
NOW, THEREFORE, for and in consideration of the mutual promises and
agreements contained herein, together with good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, it is mutually
agreed as follows:
1. Separation from Employment. The Employee agrees to voluntarily
separate from employment effective June 3, 2002.
2. Resignation from Employment. The Employee agrees to voluntarily
resign from employment effective no sooner than September 3, 2002, or
immediately upon notification from Standard Health Life Insurance of his
approval for long-term disability benefits.
3. Consideration.
(a) The Employer agrees to pay to Xxxxxx X. Xxxxxx his salary
for ninety (90) calendar days or its equivalent in short-term disability
benefits subsequent to June 3, 2002. Said gross pay bi-weekly payment
equals Six Thousand Nine Hundred Twenty-three Dollars and Seven Cents
($6,923.07).
(b) The Employer agrees to pay the Employer's portion of health
and dental insurance premiums until the Employee reaches the age of sixty-
five (65) years old, specifically, until January 13, 2015. The Employee
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agrees to pay the Employee's portion of health and dental insurance
premiums until the Employee reaches the age of sixty-five (65) years old,
specifically, until January 13, 2015. Such contributions shall be
equivalent to the premiums and allocations thereof, in effect from time to
time for all employees of the Employer. If the Employee should die prior
to reaching age sixty-five (65), the Employer's payment for health and
dental insurance premiums will cease. The Employee's surviving spouse and
dependents, if any, may then apply for health care continuation coverage
pursuant to the Consolidated Omnibus Budget Reconciliation Act ("COBRA").
(c) WesBanco agrees to provide the Employee with
continued coverage for life insurance under WesBanco's group policy;
WesBanco will continue to pay the premium for the life insurance until it
is determined that the Employee is disabled and entitled to a waiver of
premium regarding the group policy coverage.
(d) WesBanco agrees to cooperate and assist the Employee with
regard to any application filed by the Employee for long-term disability
benefits with the Standard Life Insurance Company.
(e) Employee agrees to immediately begin the application process
for long-term disability benefits through Standard Life Insurance Company
after his separation from employment effective June 3, 2002.
(f) WesBanco and Employee mutually agree to waive the written
notice period for termination of the existing Employment Agreement, namely,
ninety (90) days prior to June 2, 2002, in order for the Employee to
separate from employment effective June 3, 2002.
4. Release of Claims. In consideration of the foregoing, the
Employee hereby agrees to release and waive any and all claims or demands
(whether known or unknown) which currently exist, arising out of, or
connected with, my employment with WesBanco and the termination of my
employment, including, but not limited to, all matters in law, in equity,
in contract (oral or written, express or implied), or in tort, (excluding
Workers' Compensation and any claim for employee benefits to which Employee
is entitled as of the last day of Employee's active employment under the
express terms of the employee benefit plan) against WesBanco, any of their
parents, subsidiaries, and affiliates or predecessors in interest and any
employee benefit plan sponsored by any of them, and the officers,
employees, directors, shareholders, fiduciaries and agents of any of them,
along with the successors, assigns and heirs of any of the foregoing
persons or entities (collectively referred to as the "Releasees") arising
from Employee's employment or termination from
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employment. It is specifically understood and agreed between the Employee
and the Employer that, without limiting the generality of the foregoing,
this release and waiver includes any rights or claims to which the
Employee may have been entitled under the Equal Pay Act of 1963;
Title VII of the Civil Rights Act of 1964, as amended; the Civil
Rights Act of 1991; the Age Discrimination in Employment Act of
1967 (ADEA); the Older Workers Benefit Protection Act (OWBPA); the
Workers Adjustment and Retraining Notification Act (WARN); the Employee
Retirement Income Security Act of 1974 (ERISA); the Americans with
Disabilities Act (ADA); the West Virginia Human Rights Act (WVHRA), as
amended, and any and all other federal, state and local law claims, whether
statutory, regulatory, or common law, including, but not limited to, those
under the laws and regulations of the State of West Virginia. However, the
parties acknowledge that the Employee is not waiving any rights or claims
that may arise after this Agreement is executed; further provided, that the
Employee shall be precluded from recovering for the future effects of
discrimination or acts or inactions which occurred or should have occurred
prior to this Agreement.
5. Employee's Rights. The Employee specifically acknowledges that
on the 2nd day of May, 2002, officials of the Employer informed him that
the Employer would be entitled to the settlement provided in this Agreement
as consideration for this Agreement if and only if, the Employee executed
this Agreement and released and waived any and all claims the Employee
might have against the Releasees as defined herein. The Employee further
acknowledges that he has been advised by the Employer that he (i) has the
right to consult an attorney of his own choice at his own expense; (ii) has
been given the right to consider this Agreement for a period of up to
twenty-one (21) days before signing it; and (iii) has seven (7) days after
he signs this Agreement within which to revoke it, and that the Agreement
shall not become effective or enforceable until seven (7) days following
the date of the Employee's signature and until it is signed by a
representative of WesBanco. The Employee further acknowledges that he has
been advised to consult with an attorney prior to signing this document.
The toll free telephone number of the West Virginia State Bar's Lawyer
Information Referral Service is 0-000-000-0000.
The Employee specifically recognizes that, by signing this Agreement,
he is waiving any rights to receive any remedial or monetary relief,
including without limitation, back pay, front pay, emotional distress
damages, reinstatement, damages for injury to reputation, pain and
suffering or loss of future income, or punitive damages as a consequence of
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any charge or complaint filed with the Equal Employment Opportunity
Commission, the West Virginia Human Rights Commission or any similar state
or federal agency.
Excluded from this Separation Agreement and Release and Waiver of
Claims are my claims which cannot be waived by law, including but not
limited to the right to file a charge with or participate in an
investigation conducted by certain government agencies. I do, however,
waive my right to any monetary recovery should any agency pursue any claims
on my behalf. I represent and warrant that I have not filed any complaint,
charge, or lawsuit against WesBanco with any governmental agency and/or any
court.
In addition, I agree never to xxx WesBanco in any forum for any claim
covered by the above release and waiver language, except that I may bring a
claim under the ADEA to challenge this Separation Agreement and Release and
Waiver of Claims. If I violate this Separation Agreement and Release and
Waiver of Claims by suing WesBanco, other than under ADEA, I shall be
liable to WesBanco for its reasonable attorney's fees and other litigation
costs and expenses incurred in defending against such a suit.
6. No Admission of Liability. The parties agree that this Agreement
is not, and shall not be construed in any way as, or deemed to be, an
admission by the Employer or any Releasee of any act of wrongdoing or
admission of liability or responsibility at any time or in any manner
whatsoever.
7. Program Not to Benefit Others. The parties acknowledge that the
Employee's right to the settlement described herein shall be determined
exclusively under the provisions stated herein, and that this Agreement is
not intended to, and does not create rights for the benefit of any other
employee.
8. Business Planning. Employee recognizes that, as a matter of
business planning, WesBanco routinely reviews and evaluates various
proposals for changes in compensation, retirement, and severance programs,
as well as proposals for special exit incentive programs. Employee further
recognizes that some of the proposals, if adopted and finally implemented,
might be more advantageous or less advantageous than the Agreement
presently being offered to Employee. Unless and until such changes are
formally announced by WesBanco, no one is authorized to give assurances
that such changes will or will not occur. Employee understands that
WesBanco may adopt new or modified Agreements in the future that, depending
on his individual circumstances, may be more or less advantageous to
Employee than the
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benefit provided under this Agreement. Employee should not expect or
assume that any such new or modified Agreement or benefits will be extended
on a retroactive basis if Employee leaves employment pursuant to this
Agreement.
9. Final and Binding Agreement. The Employee agrees and recognizes
that this Agreement is final and binding.
10. Counterparts. This Agreement shall be executed in two
counterparts, each of which shall be deemed an original and together shall
constitute one and the same document, with one counterpart being delivered
to each party.
11. Entire Agreement. This Agreement supersedes all other oral and
written agreements between the parties hereto as to the matters herein and
contains all of the covenants and agreements between the parties with
respect to employment of the Employee by the Employer, the separation
thereof, and the matters provided herein. The Employee acknowledges that,
in executing this Agreement, he has not relied on any representation or
statement not set forth herein. The Employee further represents that he
has read this Agreement in its entirety and that he understands all of its
terms and enters into and signs this Agreement knowingly and voluntarily,
with full knowledge of its significance, and not as a result of any threat,
intimidation, or coercion on the part of the Employer or any Releasee.
12. Law Governing Agreement. This Agreement shall be governed by and
construed in accordance with the laws of the State of West Virginia, where
it is made, excepting such State's choice of law provisions, and except as
otherwise preempted by the Employee Retirement Income Security Act of 1974
or other applicable federal law.
13. Waiver of Breach Not Deemed Continuing. The waiver of or by any
party of a breach or violation of any provision of this Agreement must be
in writing and shall not operate or be construed as a waiver of any
subsequent breach or violation.
14. Disclosure of Employment Information. Upon execution of an
authorization for the release of information concerning the Employee's
employment to any prospective employer, the Employer will disclose the
Employee's dates of employment, including hire date and resignation date;
positions; and duties. No other employment information will be provided to
any prospective employer.
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00. XXXX Xxxxxx. The Employee is entitled to the vested balance of
the KSOP account, as required by the Plan description given his effective
resignation date of September 3, 2002. The payment of the Employee's
deferral, matching, and rollover accounts will be made as soon as
administratively feasible after the end of the quarter in which the
Employee receives final payment from the Bank. Payout is also dependent
upon receipt of all completed forms from the Employee.
Payment will be made in the form of WesBanco stock, WesMark Funds,
cash, or any combination thereof. The portion of the Employee's account
vested in shares of WesBanco stock may be distributed in whole shares of
stock and cash in lieu of fractional shares of stock. The payout can be
made as a distribution to the Employee, a direct transfer or rollover into
a tax sheltered vehicle, or a combination of the two. A minimum of 20%
Federal Income Tax Withholding is mandated if a distribution is made
directly to the Employee.
16. Other Benefits. The Employer will pay to the Employee, all other
benefits to which the Employee is entitled under applicable Benefit
programs, including, but not limited to, the following: the WesBanco, Inc.
Key Executive Incentive Bonus and Option Plan - Stock Option Agreement
dated April 18, 2001; WesBanco Bank, Inc. Salary Continuation Agreement
dated April 14, 2000; and Amendment to the WesBanco, Inc. Salary
Continuation Agreement dated September 1, 2000.
17. Construction and Severability. The parties agree that, in all
cases, the language of this Agreement shall be construed as a whole,
according to its fair meaning, and not strictly for
or against either of the parties. Furthermore, in the event that one or
more of the provisions contained in this Agreement shall, for any reason,
be held or declared to be invalid, illegal or unenforceable in any respect,
it shall be deemed deleted to the extent necessary under applicable law,
and the validity of the other terms and provisions shall not be affected
thereby.
18. Confidentiality. You understand and agree that even after your
separation from employment, you are required to maintain the
confidentiality of all proprietary information and knowledge acquired by
you during your employment with WesBanco, which belongs to WesBanco or its
customers, and which has not been published, disseminated, or otherwise
become a matter of general public knowledge. You agree that you will not
disclose or make
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use of such information, whether with respect to WesBanco's or its customers'
business, operations, finances, customers, employees or otherwise, and
whether in written form or committed to memory.
19. Headings. Headings are inserted for convenience only and shall
not control or affect the meaning or construction of any provision of this
Agreement.
20. Termination or Modification of Benefits. The Employee
understands and agrees that nothing in this Agreement shall affect the
Employer's reserved right to terminate or amend in whole or in part, in any
manner whatsoever and with respect to the Employee or any other active or
former employee or any group thereof, any employee benefit plan which is
presently or which may be offered to the Employer's employees.
IN WITNESS WHEREOF and intending to be legally bound, Xxxxxx X. Xxxxxx
has executed and Xxxx X. Xxxxx has caused this Agreement to be executed.
Executed this 30th day of May, 2002.
/s/ Xxxxxx X.Xxxxxx
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XXXXXX X. XXXXXX
WESBANCO, INC.
By /s/ Xxxx X. Xxxxx
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Its Vice President
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XXXXX XX XXXX XXXXXXXX,
XXXXXX XX XXXX, TO-WIT:
I, Xxxxx X. Xxxxx, a notary public in and for said State do certify
that Xxxxxx X. Xxxxxx, whose name is signed to the writing annexed hereto,
bearing the date of 30th day of May, 2002, has this day acknowledged the
same before me in my said county.
My commission expires: 7-15-2008.
/s/ Xxxxx X. Xxxxx
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Notary Public
STATE OF WEST VIRGINIA,
COUNTY OF OHIO, TO-WIT:
I, Xxxxx X. Xxxxx, a notary public in and for said State do certify that
Xxxx X. Xxxxx, whose name is signed to the writing annexed hereto, bearing
the date of 30th day of May, 2002, for WesBanco, Inc., has this day before me
in my said county, acknowledged the same to be the act and the deed of said
corporation.
My commission expires: 7-15-2008.
/s/ Xxxxx X. Xxxxx
-------------------
Notary Public
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