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EXHIBIT 10.8
CHANGE IN CONTROL AGREEMENT
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CHANGE IN CONTROL Agreement
TABLE OF CONTENTS
Article Section Page
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1 Definitions 2
2 Severance Benefits 6
2.1 Right to Severance Benefits 6
2.2 Services during Certain Events 6
2.3 Qualifying Termination 6
2.4 Description of Severance Benefits 7
2.5 Termination for Total and Permanent
Disability 8
2.6 Termination for Retirement or Death 8
2.7 Termination for Cause or by the
Executive Other Than for Good Reason 8
2.8 Notice of Termination 8
2.9 Effectiveness of Agreement 8
3 Form and Timing of Severance Benefits 8
3.1 Form and Timing of Severance Benefits 8
3.2 Withholding of Taxes 8
4 Tax Limitation Provision 8
4.1 Limitation on Termination Payment 8
5 The Company's and the Bank's Payment
Obligation 9
5.1 Payment Obligations Absolute 9
5.2 Contractual Rights to Benefits 9
6 Term of Agreement 10
7 Legal Remedies 10
7.1 Arbitration 10
7.2 Payment of Legal Fees 10
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Article Section Page
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8 Successors 10
9 Miscellaneous 11
9.1 Employment Status 11
9.2 Beneficiaries 11
9.3 Entire Agreement 11
9.4 Gender and Number 11
9.5 Notices 11
9.6 Execution in Counterparts 12
9.7 Conflicting Agreements 12
9.8 Severability 12
9.9 Modification 12
9.10 Applicable Law 12
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CHANGE IN CONTROL Agreement
THIS AGREEMENT is made and entered into as of this _____ day of
_________, 2001, by and among WESBANCO, INC., a West Virginia bank holding
company (hereinafter referred to as the "Company"); and WESBANCO BANK, INC., a
West Virginia banking corporation and a wholly-owned subsidiary of the Company
(hereinafter referred to as the "Bank"); and XXXXXXX X. XXXXXXX (hereinafter
referred to as the "Executive").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company and the Board of
Directors of the Bank have approved the Company and the Bank entering into
change in control agreements with certain key executives of the Company and the
Bank;
WHEREAS, the Executive is a key executive of the Company and the Bank;
WHEREAS, the Board of the Company and the Board of the Bank each
believes that, should the possibility of a Change in Control of the Company
and/or the Bank arise, it is imperative that the Company and the Bank be able to
rely upon the Executive to continue in his position, and that the Company and
the Bank be able to receive and rely upon his advice, if they request it, as to
the best interests of the Company, the Bank, and their shareholders without
concern that he might be distracted by the personal uncertainties and risks
created by the possibility of a Change in Control;
WHEREAS, should the possibility of a Change in Control arise, in
addition to the Executive's regular duties, he may be called upon to assist in
the assessment of such possible Change in Control, advise management and the
Board of the Company and the Board of the Bank as to whether such Change in
Control would be in the best interests of the Bank, the Company, and their
shareholders, and to take such other actions as the Boards determine to be
appropriate; and
WHEREAS, the Executive, the Company, and the Bank desire that the terms
of this Agreement shall act as a supplement to the benefits under the
Executive's Employment Agreement; and
WHEREAS, it is intended by the parties hereto that the benefits under
the terms of this Change in Control Agreement shall supersede and replace the
termination benefits under the Executive's Employment Contract in the event of a
termination or severance of his employment subsequent to a Change in Control;
and
NOW THEREFORE, to assure the Company and the Bank that they will have
the continued dedication of the Executive and the availability of his advice and
counsel notwithstanding the possibility, threat, or occurrence of a Change in
Control of the Company and/or the Bank, and to induce the Executive to remain in
the employ of the Company and the Bank, and for other good and valuable
consideration, the Company, the Bank, and the Executive, intending to be legally
bound, agree as follows:
Article 1. Definitions
Whenever used in this Agreement, the following terms shall have the
meanings set forth below when the initial letter of the word is capitalized:
(a) "Agreement" means this Change in Control Agreement, as the
same may be amended from time to time in accordance with
Section 9.9 herein.
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(b) "Bank" means Wesbanco Bank Wheeling, a West Virginia banking
corporation, or any successor thereto as provided in Article 8
herein.
(c) "Base Salary" means the salary of record paid by the Company
and/or the Bank to the Executive as annual salary, excluding
amounts received under incentive bonus and option plans,
whether or not deferred.
(d) "Beneficial Owner" shall have the meaning ascribed to such
term in Rule 13d-3 of the General Rules and Regulations under
the Exchange Act.
(e) "Beneficiary" means the persons or entities designated or
deemed designated by the Executive pursuant to Section 9.2
herein.
(f) "Board" means the Board of Directors of Wesbanco, Inc.
(g) "Cause" shall be determined by the Board of the Company and
the Board of the Bank, in exercise of good faith and
reasonable judgment, and shall mean the occurrence of any one
or more of the following:
(i) An act of dishonesty, willful disloyalty or fraud by
the Employee that the Bank determines is detrimental
to the best interests of the Bank; or
(ii) The Employee's continuing inattention to , neglect
of, or inability to perform, the duties to be
performed under this Agreement, or
(iii) Any other breach of the Employee's covenants
contained herein or of any of the other terms and
provisions of this Agreement; or
(iv) The deliberate and intentional engaging by the
Employee in gross misconduct which is materially and
demonstrably injurious to the Bank.
(h) "Change in Control" shall be deemed to have occurred as of the
first day that any one or more of the following conditions
shall have been satisfied:
(i) Final regulatory approval is obtained for any Person
(other than those Persons in control of the Company
and/or the Bank, as applicable, as of the Effective
Date, or other than a trustee or other fiduciary
holding securities under an employee benefit plan of
the Company and/or the Bank, as applicable, or a
corporation owned directly or indirectly by the
stockholders of the Company and/or the Bank, as
applicable, in substantially the same proportions as
their ownership of stock of the Company and/or the
Bank), becomes the Beneficial Owner, directly or
indirectly, of securities of the Company and/or the
Bank, as applicable, representing twenty percent
(20%) or more of the combined voting power of the
Company's (or the Bank's, as applicable) then
outstanding securities; or
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(ii) During any period of two (2) consecutive years (not
including any period prior to the execution of this
Agreement), individuals who at the beginning of such
period constitute the Board of the Company (and any
new Director, whose election by the Company's
stockholders or the Bank's stockholders, as
applicable, was approved by a vote of at least
two-thirds (2/3) of the Directors then still in
office who either were Directors at the beginning of
the period or whose election or nomination for
election was so approved), cease for any reason to
constitute a majority thereof; or
(iii) Final regulatory approval is obtained with respect
to: (A) a plan of complete liquidation of the Company
or the Bank; or (B) an agreement for the sale or
disposition of all or substantially all the Company's
or the Bank's assets; or (C) a merger, consolidation,
or reorganization of the Company and/or the Bank with
or involving any other corporation, other than a
merger, consolidation, or reorganization that would
result in the voting securities of the Company or the
Bank (as applicable) outstanding immediately prior
thereto continuing to represent (either by remaining
outstanding or by being converted into voting
securities of the surviving entity), at least fifty
percent (50%) of the combined voting power of the
voting securities of the Company or the Bank (as
applicable) (or such surviving entity) outstanding
immediately after such merger, consolidation, or
reorganization.
However, in no event shall a Change in Control be deemed to have
occurred, with respect to the Executive, if the Executive is part of a
purchasing group which consummates the Change in Control transaction.
The Executive shall be deemed "part of a purchasing group" for purposes
of the preceding sentence if the Executive is an equity participant in
the purchasing company or group (except for: (i) passive ownership of
less than three percent (3%) of the stock of the purchasing company; or
(ii) ownership of equity participation in the purchasing company or
group which is otherwise not significant, as determined prior to the
Change in Control by a majority of the non-employee continuing
Directors of the Company, as applicable).
(i) "Code" means the Internal Revenue Code of 1986, as amended.
(j) "Company" means Wesbanco, Inc., a West Virginia bank holding
company, or any successor thereto as provided in Article 8
herein.
(k) "Disability" means the inability of the Executive due to
mental or physical defect or disease to perform the services
required of the Executive in the position he or she held prior
to the manifestation of that defect or disease.
(l) "Effective Date" means the date this Agreement is approved by
the Company's Board, or such other date as the Company's Board
shall designate in its resolution approving this Agreement.
(m) "Effective Date of Termination" means the date on which a
Qualifying Termination occurs which triggers the payment of
Severance Benefits hereunder.
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(n) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(o) "Executive" means Xxxxxxx X. Xxxxxxx.
(p) "Good Reason" means, without the Executive's express written
consent, the occurrence after a Change in Control of the
Company or the Bank of any one or more of the following:
(i) The assignment of the Executive to duties materially
inconsistent with the Executive's authorities,
duties, responsibilities, and status (including
offices, titles, and reporting requirements) as an
officer of the Company and/or the Bank, or a
reduction or alteration in the nature or status of
the Executive's authorities, duties, or
responsibilities from those in effect as of ninety
(90) days prior to the Change in Control, other than
an insubstantial and inadvertent act that is remedied
by the Company and/or the Bank promptly after receipt
of notice thereof given by the Executive, and other
than any such alteration which is consented to by the
Executive in writing;
(ii) The Company's requiring the Executive to be based at
a location in excess of thirty-five (35) miles from
the location of the Executive's principal job
location or office immediately prior to the Change in
Control; except for required travel on the Company's
and/or the Bank's business to an extent substantially
consistent with the Executive's present business
obligations;
(iii) A reduction by the Company or the Bank of the
Executive's Base Salary by at least ten percent (10%)
from that in effect on the Effective Date;
(iv) The failure of the Company or the Bank to obtain a
satisfactory agreement from any successor to the
Company or the Bank to assume and agree to perform
the Company's and the Bank's obligations under this
Agreement, as contemplated in Article 8 herein; and
(v) Any purported termination by the Company or the Bank
of the Executive's employment that is not effected
pursuant to a Notice of Termination satisfying the
requirements of Section 2.8 herein, and for purposes
of this Agreement, no such purported termination
shall be effective.
The Executive's right to terminate employment for Good Reason shall not
be affected by the Executive's incapacity due to physical or mental
illness. The Executive's continued employment shall not constitute
consent to, or a waiver of rights with respect to, any circumstance
constituting Good Reason herein.
(q) "Person" shall have the meaning ascribed to such term in
Section 3(a)(9) of the Exchange Act and used in Sections 13(d)
and 14(d) thereof, including a "group"
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as defined in Section 13(d). The term Person shall not include
the Company or the Bank, any executive officer or Director of
the Company, the Bank, or a subsidiary of the Company or Bank,
or a group controlled by such Directors or executive officers,
or any employee benefit plan of the Company, the Bank, or a
subsidiary of the Company or Bank; provided, however, that the
term Person shall include any individual who is a Director on
the Effective Date, and who as of the Effective Date
beneficially owned five percent (5%) or more of the voting
shares of common stock of the Company, or a group controlled
by such a Director.
(r) "Qualifying Termination" means any of the events described in
Section 2.3 herein, the occurrence of which triggers the
payment of Severance Benefits hereunder.
(s) "Severance Benefits" means the payment of severance
compensation as provided in Section 2.4 herein.
Article 2. Severance Benefits
2.1. Right to Severance Benefits. Subject to Section 2.9 herein, the
Executive shall be entitled to receive from the Company and the Bank, jointly
and severally, Severance Benefits as described in Section 2.4 herein, if a
Change in Control of the Company and/or the Bank has occurred and if, within
twenty-four (24) calendar months thereafter, the Executive's employment with the
Company and/or the Bank shall end for any reason specified in Section 2.3 herein
as being a Qualifying Termination.
The Executive shall not be entitled to receive Severance Benefits if he
is terminated for Cause, or if his employment with the Company ends due to
death, Disability, retirement (as defined under the then established rules of
the Company's tax-qualified retirement plan), or due to a voluntary termination
of employment by the Executive without Good Reason.
2.2. Services During Certain Events. In the event a Person begins a
tender or exchange offer, solicits proxies from shareholders of the Company
and/or the Bank, or takes other steps seeking to effect a Change in Control, the
Executive agrees that he will not voluntarily leave the employ of the Company or
the Bank and will render services until such Person has abandoned or terminated
his or its efforts to effect a Change in Control, or, if later, until
twenty-four (24) months after a Change in Control has occurred; provided,
however, that the Company and the Bank may terminate the Executive for Cause at
any time, and the Executive may terminate his employment any time after the
Change in Control for Good Reason.
2.3. Qualifying Termination. The occurrence of any one or more of the
following events within twenty-four (24) calendar months after a Change in
Control of the Company or the Bank shall trigger the payment of Severance
Benefits to the Executive under this Agreement:
(a) An involuntary termination of the Executive's employment with
the Company or the Bank without Cause;
(b) A voluntary termination of the Executive's employment with the
Company or the Bank for Good Reason;
(c) A successor company fails or refuses to assume the Company's
and the Bank's obligations under this Agreement, as required
by Article 8 herein; or
(d) The Company, the Bank, or any successor company breaches any
of the provisions of this Agreement.
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For purposes of this Agreement, a Qualifying Termination shall not
include a termination of employment by reason of death, Disability, or
retirement (as such term is defined under the then-established rules of the
Company's tax-qualified retirement plan), a voluntary termination without Good
Reason, or an involuntary termination for Cause.
2.4. Description of Severance Benefits. Subject to Section 2.9 herein,
in the event that the Executive becomes entitled to receive Severance Benefits,
as provided in Sections 2.1 and 2.3 herein, and subject to the limits set forth
in Article 4 herein, the Company and/or the Bank shall pay to the Executive and
provide him with total Severance Benefits equal to the following:
(a) An amount equal to three (3) times the highest rate of the
Executive's annual Base Salary in effect at any time up to and
including the Effective Date of Termination.
(b) An amount equal to three (3) times the greater of: (i) the
Executive's average annual bonus earned over the most recent
three (3) bonus plan years ending prior to the Effective Date
of Termination; or (ii) the Executive's bonus established for
the annual bonus plan year in which the Executive's Effective
Date of Termination occurs.
(c) An amount equal to the Executive's unpaid Base Salary and
accrued vacation pay through the Effective Date of
Termination.
(d) A continuation of all medical benefits pursuant to plans under
which the Executive and/or the Executive's family is eligible
to receive medical benefits and/or coverage as of the
effective date of the Change in Control. These benefits shall
be provided by the Company and/or the Bank to the Executive
immediately upon the Effective Date of Termination and shall
continue to be provided for eighteen (18) months from the
Effective Date of Termination. Such benefits shall be provided
to the Executive at the same coverage level as in effect as of
the Executive's Effective Date of Termination. The Company
and/or the Bank shall pay the full cost of such continued
benefits, except that the Executive shall bear any portion of
such cost as is required to be borne by key executives of the
Company and/or the Bank generally at the time of such Change
in Control.
The medical benefits described in this Subsection 2.4(d) shall
continue for eighteen (18) months following the Effective Date
of Termination; provided, however, that such benefits shall be
discontinued prior to the end of the eighteen (18) month
period to the extent, but only to the extent, that the
Executive receives substantially similar benefits from a
subsequent employer, as determined by the Company or the Bank.
The obligation of the Company and the Bank to provide the Executive
with the Severance Benefits described herein shall be joint and several.
Regardless of how the Company and the Bank apportion the responsibility for
satisfying the obligations set forth herein, the total Severance Benefits
payable to the Executive shall equal the amounts set forth in this Article 2, as
limited by Article 4 herein.
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2.5. Termination for Total and Permanent Disability. Following a Change
in Control, if the Executive's employment is terminated with the Company or the
Bank due to Disability, the Executive shall receive his Base Salary and accrued
vacation through the Effective Date of Termination, at the rate then in effect,
plus all other amounts to which the Executive is entitled under any employment
contract or any compensation plans of the Company and the Bank, at the time such
payments are due, and otherwise the Executive's benefits shall be determined in
accordance with the Company's and the Bank's retirement, insurance, and other
applicable plans and programs then in effect.
2.6. Termination for Retirement or Death. Following a Change in
Control, if the Executive's employment with the Company or the Bank is
terminated by reason of his retirement (as defined under the then established
rules of the Company's tax-qualified retirement plan), or death, the Executive
(or his Beneficiary) shall receive his Base Salary and accrued vacation through
the Effective Date of Termination, at the rate then in effect, plus all other
amounts to which the Executive is entitled under any compensation plans of the
Company and the Bank, at the time such payments are due, and otherwise the
Executive's benefits shall be determined in accordance with the Company's and
the Bank's retirement, survivor's benefits, insurance, and other applicable
programs then in effect.
2.7. Termination for Cause or by the Executive Other Than for Good
Reason. Following a Change in Control, if the Executive's employment is
terminated either: (i) by the Company or the Bank for Cause; or (ii) by the
Executive other than for Good Reason, the Company and/or the Bank shall pay the
Executive his full Base Salary and accrued vacation through the Effective Date
of Termination, at the rate then in effect, plus all other amounts to which the
Executive is entitled under any employment contract or any compensation plans of
the Company and the Bank, at the time such payments are due, and the Company and
the Bank shall have no further obligations to the Executive under this
Agreement.
2.8. Notice of Termination. Any termination by the Company or the Bank
for Cause or by the Executive for Good Reason shall be communicated by Notice of
Termination to the other party. For purposes of this Agreement, a "Notice of
Termination" shall mean a written notice which shall indicate the specific
termination provision in this Agreement relied upon, and shall set 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.
2.9. Effectiveness of Agreement. Notwithstanding any provision of this
Agreement to the contrary, this Agreement and any payments, benefits or rights
of the Executive as provided herein are subject to Section 18(k) of the Federal
Deposit Insurance Act, as amended, and any applicable regulations thereunder.
Article 3. Form and Timing of Severance Benefits
3.1. Form and Timing of Severance Benefits. Except as limited by
Article 4 herein, the Severance Benefits described in Sections 2.4(a), 2.4(b),
and 2.4(c) herein shall be paid in cash to the Executive in a single lump sum as
soon as practicable following the Effective Date of Termination, but in no event
beyond thirty (30) days from such date.
3.2. Withholding of Taxes. The Company and/or the Bank, as applicable,
shall withhold from any amounts payable under this Agreement all federal, state,
city, or other taxes as legally shall be required.
Article 4. Tax Limitation Provision
4.1. Limitation on Termination Payment.
(a) Determination of Termination Payment Limit. Notwithstanding
any other provision of this Agreement, if any portion of the
Severance Benefits or any other payment under this Agreement,
or under any other agreement with or plan of the Company or
the Bank (in the aggregate "Total Payments") would constitute
an "excess parachute payment," then the payments to be made to
the Executive under
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this Agreement shall be reduced or extended over an
installment period such that the value of the aggregate Total
Payments that the Executive is entitled to receive shall be
One Dollar ($1.00) less than the maximum amount which the
Executive may receive without becoming subject to the tax
imposed by Section 4999 of the Code, or which the Company and
the Bank may pay without loss of deduction under Section
28OG(a) of the Code. For purposes of this Agreement, the terms
"excess parachute payment" and "parachute payments" shall have
the meanings assigned to them in Section 28OG of the Code, and
such "parachute payments" shall be valued as provided therein.
(b) Procedure for Establishing Limitation on Termination Payment.
Within twenty (20) days following delivery of the Notice of
Termination (as described in Section 2.8 herein) or notice by
the Company or the Bank to the Executive of its belief that
there is a payment or benefit due the Executive which will
result in an "excess parachute payment" as defined in Section
280G of the Code, the Executive, the Company, and the Bank, at
the Company's and the Bank's expense, shall obtain the opinion
of the Company's principal outside accounting firm (the
"Accounting Firm"), which sets forth: (i) the amount of the
Executive's "annualized includible compensation for the base
period" (as defined in Code Section 280G(d)(1)); (ii) the
present value of the Total Payments; and (iii) the amount and
present value of any "excess parachute payment." Such opinion
shall be binding upon the Company, the Bank, and the
Executive.
In the event that such opinion determines that there would be an
"excess parachute payment," the Severance Benefits hereunder or any other
payment determined by such accounting firm to be includible in Total Payments
shall be reduced or eliminated as specified by the Executive in writing
delivered to the Company and the Bank within ten (10) days of his receipt of
such opinion, or, if the Executive fails to so notify the Company and the Bank,
then as the Company or the Bank, as applicable, shall reasonably determine, so
that under the basis of calculations set forth in such opinion, there will be no
"excess parachute payment."
The provisions of this Section 4.1(b), including the calculations,
notices, and opinion provided for herein, shall be based upon the conclusive
presumption that any compensation earned prior to the Effective Date of
Termination by the Executive pursuant to the Company's and the Bank's
compensation programs (if such compensation would have been paid in the future
in any event, even though the timing of payment thereof is triggered by the
Change in Control) is reasonable.
Article 5. The Company's and the Bank's Payment Obligation
5.1. Payment Obligations Absolute. Except as otherwise provided in the
last sentence of Section 2.4(d) herein, the Company's and the Bank's obligation
to make the payments and the arrangements provided for herein shall be absolute
and unconditional, and shall not be affected by any circumstance, including,
without limitation, any offset, counterclaim, recoupment, defense, or other
right which the Company or the Bank may have against the Executive or any other
party. All amounts payable by the Company and the Bank hereunder shall be paid
without notice or demand. Each and every payment made hereunder by the Company
and the Bank shall be final, and neither the Company nor the Bank shall seek to
recover all or any part of such payment from the Executive or from whomsoever
may be entitled thereto, for any reasons whatsoever.
The Executive shall not be obligated to seek other employment in
mitigation of the amounts payable or arrangements made under any provision of
this Agreement, and the obtaining of any such other employment shall in no event
effect any reduction of the Company's or the Bank's obligations to make the
payments and arrangements required to be made under this Agreement, except to
the extent provided in Section 2.4(d) herein.
5.2. Contractual Rights to Benefits. This Agreement establishes and
vests in the Executive a contractual right to the benefits to which he is
entitled hereunder. However, nothing herein contained shall require or be deemed
to require, or prohibit or be deemed to prohibit, the Company or the Bank to
segregate, earmark, or
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otherwise set aside any funds or other assets, in trust or otherwise, to
provide for any payments to be made or required hereunder.
Article 6. Term of Agreement
6.1 Subject to Section 2.9 herein, this Agreement shall commence on the
Effective Date and shall continue in effect for three (3) full years, the last
day of which shall be the "Expiration Date." However, at the end of such
three-year period and, if extended, at the end of each additional year
thereafter, the term of this Agreement shall be extended automatically for one
(1) additional year, unless the Company or the Bank delivers written notice
three (3) months prior to the end of such term, or extended term, to the
Executive, that the Agreement will not be extended. In such case, the Agreement
will terminate at the end of the term, or extended term, then in progress.
However, in the event a Change in Control occurs during the original or
any extended term, this Agreement will remain in effect for the longer of: (i)
twenty-four (24) months beyond the month in which such Change in Control
occurred; or (ii) until all obligations of the Company and the Bank hereunder
have been fulfilled, and until all benefits required hereunder have been paid to
the Executive or other party entitled thereto.
Article 7. Legal Remedies
7.1. Arbitration. Any controversy or claim arising out of or relating
to this Agreement or the breach thereof (including the arbitrability of any
controversy or claim), shall be settled by arbitration in the City of Wheeling
in accordance with the laws of the State of West Virginia by three (3)
arbitrators, one of whom shall be appointed by the Company or the Bank, as
applicable, one by the Executive, and the third of whom shall be appointed by
the first two arbitrators. If the first two arbitrators cannot agree on the
appointment of a third arbitrator, then the third arbitrator shall be appointed
by the American Arbitration Association. The arbitration shall be conducted in
accordance with the rules of the American Arbitration Association, except with
respect to the selection of arbitrators which shall be as provided in this
Section 7.1. The cost of any arbitration proceeding hereunder shall be borne
equally by the Company or the Bank, as applicable, and the Executive. The award
of the arbitrators shall be binding upon the parties. Judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
7.2. Payment of Legal Fees. In the event that it shall be necessary or
desirable for the Executive to retain legal counsel and/or incur other costs and
expenses in connection with the enforcement of any or all of his rights under
this Agreement, and provided that the Executive substantially prevails in the
enforcement of such rights, the Company or the Bank, as applicable, shall pay
(or the Executive shall be entitled to recover from the Company or the Bank, as
the case may be) the Executive's reasonable attorneys, fees, costs and expenses
in connection with the enforcement of his rights including the enforcement of
any arbitration award.
Article 8. Successors
The rights of the Company and the Bank hereunder shall run in favor of
the Company and the Bank, and their respective successors, assigns, nominees, or
other legal representatives. Termination of the Executive's employment shall not
operate to relieve him of any remaining obligations hereunder, and all such
obligations are binding upon his heirs, executors, administrators, or other
legal representatives. The Company and the Bank shall require any successor
(whether direct or indirect by purchase, merger, reorganization, consolidation,
acquisition of property or stock, liquidation, or otherwise) to all or a
significant portion of the assets of the Company or the Bank, as the case may
be, by agreement in form and substance satisfactory to the Executive, expressly
to assume and agree to perform this Agreement in the same manner and to the same
extent that the Company or the Bank, as the case may be, would be required to
perform if no such succession had taken place. Regardless of whether such
agreement is executed, this Agreement shall be binding upon any successor in
accordance with the operation of law and such successor shall be deemed the
"Company" or the "Bank," as the case may be, for purposes of this Agreement.
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Article 9. Miscellaneous
9.1. Employment Status. The Executive, the Company, and the Bank
acknowledge that, except as may be provided under any other agreement between
the Executive and the Company or the Bank, the employment of the Executive by
the Company and the Bank is "at will," and, except as set forth in Section 2.2
herein, prior to the effective date of a Change in Control, may be terminated by
either the Executive, the Company, or the Bank, at any time. Upon a termination
of the Executive's employment prior to the effective date of a Change in
Control, there shall be no further rights under this Agreement; provided,
however, that if such an employment termination shall arise in connection with,
or in anticipation of, a Change in Control, then the Executive's rights shall be
the same as if the termination had occurred within two (2) years following a
Change in Control.
9.2 Beneficiaries. The Executive may designate one or more persons or
entities as the primary and/or contingent Beneficiaries of any Severance
Benefits owing to the Executive under this Agreement. Such designation must be
in the form of a signed writing acceptable to the Board of Directors of the
Company or the Board of the Bank, as applicable. The Executive may make or
change such designation at any time.
9.3. Entire Agreement; Superseding Effect. This Agreement contains the
entire understanding of the Company, the Bank, and the Executive with respect to
the subject matter hereof. In particular, this Agreement completely replaces and
supersedes the terms of the Executive's employment agreement dated the _____ day
of ______________, 2001, concerning the Executive's entitlement to payments and
benefits arising as a result of a termination of employment. However, all terms
and provisions of the Executive's employment-agreement dated the ______ day of
________________, 2001, which do not concern the Executive's entitlement to
payments and benefits arising as a result of a Change in Control of the Company
or the Bank shall remain binding upon the Company, the Bank, and the Executive.
In addition, the payments provided for under this Agreement in the
event of the Executive's termination of employment shall be in lieu of any
severance benefits payable under any severance plan, program, or policy of the
Company and the Bank to which he might otherwise be entitled.
9.4. Gender and Number. Except where otherwise indicated by the
context, any masculine term used herein also shall include the feminine; the
plural shall include the singular, and the singular shall include the plural.
9.5. Notices. All notices, requests, demands, and other communications
hereunder must be in writing and shall be deemed to have been duly given if
delivered by hand or mailed within the continental United States by first-class
certified mail, return receipt requested, postage prepaid, to the other party,
addressed as follows:
(a) if to the Company:
Wesbanco, Inc.
Xxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
(b) if to the Bank:
Wesbanco Bank Wheeling
Xxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
(c) if to Executive:
Xxxxxxx X. Xxxxxxx
X.X. Xxx 00
Xxxxxxxxx, XX 00000
Addresses may be changed by written notice sent to the other party at
the last recorded address of that party.
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9.6. Execution in Counterparts. This Agreement may be executed by the
parties hereto in counterparts, each of which shall be deemed to be original,
but all such counterparts shall constitute one and the same instrument, and all
signatures need not appear on any one counterpart.
9.7. Conflicting Agreements. The executive hereby represents and
warrants to the Company and the Bank that his entering into this Agreement, and
the obligations and duties undertaken by him hereunder, will not conflict with,
constitute a breach of, or otherwise violate the terms of, any other employment
or other agreement to which he is a party, except to the extent any such
conflict, breach, or violation under any such agreement has been disclosed to
the Company's Board and the Bank's Board in writing in advance of the signing of
this Agreement.
9.8. Severability. In the event any provision of this Agreement shall
be held illegal or invalid for any reason, the illegality or invalidity shall
not affect the remaining parts of the Agreement, and the Agreement shall be
construed and enforced as if the illegal or invalid provision had not been
included. Further, the captions of this Agreement are not part of the provisions
hereof and shall have no force and effect.
Notwithstanding any other provision of this Agreement to the contrary,
the Company and the Bank shall have no obligation to make any payment to the
Executive hereunder to the extent, but only to the extent, that such payment is
prohibited by the terms of any final order of a Federal or state court or
regulatory agency of competent jurisdiction; provided, however, that such an
order shall not affect, impair, or invalidate any provision of this Agreement
not expressly subject to such order.
9.9. Modification. No provision of this Agreement may be modified,
waived, or discharged unless such modification, waiver, or discharge is agreed
to in writing and signed by the Executive and by a member of the Company's Board
or the Bank's Board, as applicable, or by the respective parties, legal
representatives or successors.
9.10. Applicable Law. To the extent not preempted by the laws of the
United States, the laws of the Commonwealth of Pennsylvania shall be the
controlling law in all matters relating to this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on this
______ day of _________________, 2001.
WESBANCO, INC.
By
------------------------------
Title
------------------------
WESBANCO BANK, INC.
By
------------------------------
Title
------------------------
----------------------------------
XXXXXXX X. XXXXXXX
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