AMENDED AND RESTATED EMPLOYMENT AND CHANGE-OF-CONTROL AGREEMENT
Exhibit 10.1
AMENDED AND RESTATED
EMPLOYMENT AND CHANGE-OF-CONTROL AGREEMENT
EMPLOYMENT AND CHANGE-OF-CONTROL AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AND CHANGE-OF-CONTROL AGREEMENT (“Agreement”) made as of
the 12th day of February, 2009, by and between CENTRA BANK, INC., a West Virginia corporation
(“Employer”), and S. ▇▇▇▇ ▇▇▇▇▇▇ (“Employee”), joined in by CENTRA FINANCIAL HOLDINGS, INC., a West
Virginia corporation (“Centra Financial”), and by CENTRA FINANCIAL CORPORATION-MORGANTOWN, INC., a
West Virginia corporation (“CFC”).
WITNESSETH THAT:
WHEREAS, Employer desires to retain the services of Employee as its Senior Vice
President—Commercial Lending, and Employee is willing to make his services available to Employer,
on the terms and subject to the conditions set forth herein; and
WHEREAS, Employee acknowledges that this Agreement is a benefit to him, that this Agreement is
not required for continued employment with Employer or any affiliate and that Employee is executing
this Agreement voluntarily and of his free will and volition.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto
agree as follows:
1. Employment. Employee is hereby employed as Senior Vice President—Commercial
Lending Employee hereby accepts and agrees to such employment, subject to the supervision and
pursuant to the orders, advice, and direction of Employer and its Board of Directors. Employee
shall perform such services and duties as may be reasonably assigned to him from time to time by
Employer, consistent with his position.
2. Term of Agreement. The term of this Agreement (“Term”) shall commence from and
after the date hereof, and shall ninety (90) days from the date hereof. This Agreement shall renew
for automatic terms of ninety (90) days each, unless Employer, in its sole discretion, notifies
Employee that it will not renew this Agreement, prior to the end of the Term or any renewal term.
3. Compensation; Other Benefits.
a. For all services rendered by Employee to Employer under this Agreement, Employer shall pay
to Employee, for the stated period beginning on the date hereof, an annual salary of $149,000.00,
payable in accordance with the payroll practices of Employer applicable to all officers. This
salary may be reviewed for an increase sooner if approved by Employee’s Board of Directors. Any
salary increase payable to Employee shall be determined based on a review of Employee’s total
compensation package, Employer’s performance, the performance of Employee and market
competitiveness. Employee’s annual salary, as it may be adjusted from time to time, will be his
base salary for purposes of future calculations of benefits. The base salary for purposes of
future calculation of benefits may not be reduced.
b. Except as modified by this Agreement, Employee shall be entitled to participate in all
compensation or employee benefit plans or programs for which Employee may legally be eligible.
Employee shall be entitled to four weeks of vacation per year.
c. Employer shall pay or reimburse Employee for all reasonable travel and other expenses
incurred by Employee (and his spouse where there is a legitimate business reason for his spouse to
accompany him) in connection with the performance of his duties and obligations under this
Agreement, subject to Employee’s presentation of appropriate vouchers in accordance with such
procedures as Employer may from time to time establish for executive officers generally.
d. Employer shall provide Employee with a Company vehicle for business and personal use.
e. Employer shall pay or reimburse Employee for annual membership at The Pines Country Club.
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4. Termination.
a. Termination of Employment. Except for Just Cause, in the event that Employee shall
suffer a termination of employment by Employer during the term of this Agreement, the Employee
shall be entitled to receive ninety (90) days’ compensation, including base salary for purposes of
benefit calculation, and customary and usual incentives and bonuses, pro rated to reflect ninety
(90) days’ compensation (based on the average of the incentives and bonuses paid to Employee during
or for the previous two (2) full years, or if less than two (2) full years the amount of said
incentives and bonuses so paid divided by two (2), prior to termination) payable to Employee within
ninety (90) days after termination, and all benefits as set forth in this Agreement, including the
benefits provided for in Section 3 hereof, will continue to be paid by Employer for a period of
ninety (90) days. At the time of said termination, this Agreement shall terminate and the Employer
shall be obligated to make the payments as set forth in this Subsection 4(a) as severance
compensation to the Employee; provided, however, that the payments provided for herein shall not be
payable to Employee in the event of voluntary termination by Employee
b. Death. If Employee shall die during the Term, this Agreement and the employment
relationship hereunder will automatically terminate on the date of death, which date shall be the
last date of the Term. Notwithstanding this Subsection 4(b), if Employee dies while employed by
Employer, Employee’s estate shall receive Employee’s Compensation as defined in Section 3 herein
for a period of ninety (90) days. If the Employee shall die while terminated from the Bank and is
receiving payments as set forth in Subsection 4(a) hereinabove, then the Employee’s beneficiaries
shall, at their option, be entitled to receive the remainder of payments due hereunder in a lump
sum. Said amount shall be payable on the first day of the second month following the decease of
the Employee.
c. Just Cause. Employer shall have the right to terminate Employee’s employment under
this Agreement at any time for Just Cause, which termination shall be effective immediately.
Termination for “Just Cause” shall be defined as (i) the willful and/or continued failure of
Employee to perform substantially his duties with the Employer to the Employer’s reasonable
satisfaction (other than any such failure resulting from Employee’s
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incapacity due to illness), (ii) the willful engaging by Employee in illegal conduct, personal
dishonesty, gross personal misbehavior, or gross misconduct that is demonstrably injurious to
Employer, Centra Financial, or CFC, (iii) the Employee’s conviction of, or plea of guilty or
nolo contendere to, a felony involving moral turpitude, (iv) breach of any fiduciary duty involving
personal profit, (v) failure to pass any legal drug test given by or on behalf of the Employer
pursuant to a drug testing policy applicable to Employer’s employees generally, (vi) a material
breach by Employee of this Agreement or any employment agreement with Employer, or (vii) breach of
Section 6 hereof, with a breach to be determined in Employer’s sole discretion. In the event
Employee’s employment under this Agreement is terminated for Just Cause, Employee shall have no
right to receive compensation or other benefits under this Agreement for any period after such
termination.
d. Change of Control. In the event of a Change of Control (as defined below) of
Employer at any time after the date hereof, and there is a termination as defined in Section 4(a)
within ninety (90) days after the Change of Control, Employee shall be entitled to receive any
compensation due but not yet paid through the date of termination and all compensation and benefits
as set forth in Section 4(a) of this Agreement payable within ninety (90) days following such
termination.
A “Change of Control” shall be deemed to have occurred if (i) any person or group of persons
(as defined in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934) together with its
affiliates, excluding employee benefit plans of Employer, is or becomes, directly or indirectly,
the “beneficial owner” (as defined in Rule 13d-3 promulgated under the Securities Exchange Act of
1934) of securities of Employer or Centra Financial representing 50% or more of the combined voting
power of Employer’s then outstanding securities; provided, however, that any public or private
stock issuance by Employer shall not constitute a change of control for purposes hereunder, or (ii)
during the term of this Agreement: (X) as a result of a tender offer or exchange offer for the
purchase of securities of Employer (other than such an offer by Employer for its own securities),
or (Y) as a result of a proxy contest, merger, consolidation or sale of assets, and (Z) as a result
of either or any combination of the foregoing, there is a change in the composition of at least
one-half of the members of Employer’s Board of Directors, except new directors whose election or
nomination for election by Employer’s
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shareholders is approved by a vote of at least a majority of the directors still in office who
are directors at the beginning of such ninety (90) day period; or (iii) the shareholders of
Employer or Centra Financial approve a merger or consolidation of Employer or Centra financial with
and into any other corporation or entity, which entity is the survivor, other than a merger or
consolidation which would result in the voting securities of Employer or Centra Financial
outstanding or being converted into voting securities of the surviving entity) at least 50% of the
combined voting power of the voting securities of Employer or Centra Financial or such surviving
entity outstanding immediately after such merger of consolidation.
e. Non-Competition. During any period in which or for which Employee receives
compensation pursuant to this Agreement, including any period represented by payments under Section
4(a) hereof, Employee will not directly or indirectly, either as a principal, agent, employer,
stockholder, co-partner or in any other individual or representative capacity whatsoever, engage in
the banking and financial services business, which includes consumer, savings, commercial banking
and the insurance and trust businesses, or the savings and loan or mortgage banking business, or
any other business in which Employer or its Affiliates are engaged, anywhere in any county in which
Employer or its Affiliates have an office, and in any county contiguous to any county in which
Employer or its Affiliates have an office, nor will Employee solicit, or assist any other person in
soliciting, any depositors or customers of Employer or its Affiliates or induce any then or former
employee of Employer or its Affiliates to terminate their employment with Employer or its
Affiliates. The term Affiliate as used in this Agreement means a Person that directly or
indirectly through one or more intermediaries, controls, or is controlled by, or is under common
control with, another Person. The term Person as used in this Agreement means any person,
partnership, corporation, group or other entity.
f. No Mitigation. In receiving any payments pursuant to this Section 4, Employee
shall not be obligated to seek other employment or take any other action by way of mitigation of
the amounts payable to Employee hereunder and such amounts shall not be reduced or terminated
whether or not Employee obtains other employment.
g. Parachute Payments.
(1) Notwithstanding anything in this Agreement to the
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contrary, in the event it shall be determined that any payment, award, benefit or distribution
(or any acceleration of any payment, award, benefit or distribution) by Employer (or any of its
affiliated entities) or any entity which effectuates a Change of Control (or any of its affiliated
entities) to or for the benefit of Employee (whether pursuant to the terms of this Agreement or
otherwise) (the “Payments”) would be subject to the excise tax (the “Excise Tax”) under Section
4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then the amounts payable to
Employee under this Agreement shall be reduced (reducing first the payments under Section 3(b),
unless an alternative method of reduction is elected by Employee) to the maximum amount as will
result in no portion of the Payments being subject to such Excise Tax (the “Safe Harbor Cap”). For
purposes of reducing the Payments of the Safe Harbor Cap, only amounts payable under this Agreement
(and no other Payments) shall be reduced, unless consented to by Employee.
(2) All determinations required to be made under this Subsection 4(g) shall be made by the
public accounting firm that is generally retained by Employer (the “Accounting Firm”). In the
event that the Accounting Firm is serving as accountant or auditor for any individual, entity or
group effecting a Change of Control (or if the Accounting Firm fails to make the Determination),
Employee may appoint another nationally recognized public accounting firm to make the
determinations required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). If payments are reduced to the Safe Harbor Cap, the Accounting Firm
shall provide a reasonable opinion to Employee that he is not required to report any Excise Tax on
his federal income tax return. All fees, costs and expenses (including, but not limited to the
costs of retaining experts) of the Accounting Firm shall be borne by Employer, and the
determination by the Accounting Firm shall be binding upon Employer and Employee (except as
provided in Subsection (3) below).
(3) If it is established pursuant to a final determination of a court or an Internal Revenue
Service (the “IRS”) proceeding which has been finally and conclusively resolved, that Payments have
been made to, or provided for the benefit of, Employee by Employer, which are in excess of the
limitations provided in this Section 4 (hereinafter referred to as an “Excess Payment”), such
Excess Payment shall be deemed for all purposes to be a loan to Employee made on the date Employee
received the Excess Payment and
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Employee shall repay the Excess Payment to Employer on demand, together with interest on the
Excess Payment at the applicable federal rate (as defined in Section 1274(d) of the Code) from the
date of Employee’s receipt of such Excess Payment until the date of such repayment. As a result of
the uncertainty in the application of Section 4999 of the Code at the time of the determination, it
is possible that Payments which will not have been made by Employer shall have been made (an
“Underpayment”), consistent with the calculations required to be made under this Subsection 4(g).
In the event that it is determined (i) by the Accounting Firm, Employer (which shall include the
position taken by Employer, or together with its consolidated group, on its federal income tax
return) or the IRS, or (ii) pursuant to a determination by a court, that an Underpayment has
occurred, Employer shall pay an amount equal to such Underpayment to Employee within ten (10) days
of such determination together with interest on such amount at the applicable federal rate from the
date such amount would have been paid to Employee until the date of payment.
h. Key Employee. To the extent that Employee is a “key employee” (as defined under
Section 416(i) of the Internal Revenue Code, disregarding Section 416(i)(5) of the Internal Revenue
Code) of the Company, no payment of Termination Compensation may be made under this Section 4 prior
to the earlier of (i) the expiration of the six (6) month period measured from the date of
Employee’s separation from service, or (ii) the date of the Employee’s death; provided, however,
that the six (6) month delay required under this Section 4(i) shall not apply to the portion of any
payment resulting from the Employee’s “involuntary separation from service” (as defined in Treas.
Reg. 1.409A l(n) and including a “separation from service for good reason” as defined in Treas.
Reg. 1.409A i(n)(1) that (a) is payable no later than the last day of the second year following the
year in which the separation of service occurs, and (b) does not exceed two (2) times the lesser of
(i) the Employee’s annualized compensation for the year prior to the year in which the separation
from services occurs, or (ii) the dollar limit describe din Section 401(a)(17) of the Code. To the
extent Termination Compensation payable in monthly installments under this Section 4 is required to
be deferred under the preceding sentence, the first six (6) months of monthly installments shall be
payable in month seven following Employee’s separation from service and the remaining monthly
payments shall be made when otherwise scheduled.
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i. Termination of Employment. Any reference in this Agreement to a termination of
employment, severance from employment or separation from employment shall be deemed to mean a
“Termination of Employment.” A “Termination of Employment” means the termination of the Employee’s
employment with the Company and its Affiliates for reasons other than death or disability. Whether
a Termination of Employment takes place is determined based on the facts and circumstances
surrounding the termination of the Employee’s employment. A Termination of Employment will be
considered to have occurred if it is reasonably anticipated that:
(i) the Employee will not perform any services for the Company or its
Affiliates after Termination of Employment, or
(ii) the Employee will continue to provide services for the Company
or its Affiliates at an annual rate that is less than fifty percent
(50%) of the bona fide services rendered during the immediately
preceding twelve (12) months of employment.
5. Other Employment. Employee shall devote all of his business time, attention,
knowledge and skills solely to the business and interest of Employer and its Affiliates, and
Employer and its Affiliates shall be entitled to all of the benefits, profits and other emoluments
arising from or incident to all work, services and advice of Employee, and Employee shall not,
during the Term hereof, become interested directly or indirectly, in any manner, as partner,
officer, director, stockholder, advisor, employee or in any other capacity in any other business
similar to Employer’s business; provided, however, that nothing herein contained shall be deemed to
prevent or limit the right of Employee to invest in a business similar to Employer’s business if
such investment is limited to less than 5% of the capital stock or other securities of any
corporation or similar organization whose stock or securities are publicly owned or are regularly
traded on any public exchange or less than 1% of the capital stock of any other entity.
6. Nondisparagement. Employee agrees that during the Term of this Agreement and for
five (5) years thereafter not to make any statements that disparage Employer, its respective
affiliates, employees, officers, directors, products or services. Notwithstanding the
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foregoing, statements made in the course of sworn testimony in administrative, judicial or
arbitral proceedings (including, without limitation, depositions in connection with such
proceedings) shall not be subject to this Section 6.
7. Arbitration. Except as otherwise provided in this Section 7, all disputes
arising out of or relating to this Agreement, the interpretation or application of this Agreement,
or Employee’s employment with Employer (hereinafter “Covered Disputes”), shall be resolved solely
and exclusively by binding arbitration, applying the law of West Virginia.
Unless otherwise agreed in writing by the parties:
(i) the arbitration will be conducted before a single arbitrator of the American Arbitration
Association (“AAA”), in accordance with the rules of the AAA then in effect regarding arbitration
of employment disputes; and
(ii) the arbitration will be conducted in Morgantown, West Virginia.
The award rendered by the arbitrator shall be binding on the parties, and judgment on such
award may be entered by any court of competent jurisdiction.
a. Injunctions to Enforce Arbitration and to Restrain Violations Pending Arbitration.
Notwithstanding the foregoing, either party may file a lawsuit to compel arbitration of disputes
between the parties and to enjoin violations of this Agreement pending arbitration. Such lawsuit
may be brought only in the Circuit Court of Monongalia County, West Virginia, or the United States
District Court for the Northern District of West Virginia, and Employee and Employer hereby waive
any right that they might have to challenge the selection of those forums, including but not
limited to challenges to personal jurisdiction, venue, or the convenience of the forum.
Specifically, by executing this Agreement, Employee and Employer agree, consent, and stipulate
that, in any action to compel arbitration of a Covered Dispute or to enjoin violations of this
Agreement pending arbitration: (i) the aforesaid courts have personal jurisdiction over Employee
and Employer, (ii) venue is proper in those courts, and (iii) those courts provide a convenient
forum for that action.
To the maximum extent permitted by the law, the parties stipulate and agree that
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this provision supersedes any analysis of choice of laws. To the extent that a choice-of-laws
analysis is required, the parties stipulate and agree that West Virginia and Federal law shall
govern such analysis.
b. Arbitration Costs. Employer shall pay all costs and fees charged by AAA for the
arbitration, including the arbitrator’s fees and expenses (“Arbitration Costs”) provided, however,
the arbitrator shall apportion the award of Arbitration Costs between the parties based upon their
relative degree of success.
8. Joinder by Centra Financial and CFC. Centra Financial and CFC join into this
Agreement to evidence their consent to the terms hereof.
9. Miscellaneous.
a. This Agreement shall be governed by and construed in accordance with the laws of the State
of West Virginia without regard to conflicts of law principles thereof.
b. This Agreement, together with any Stock Option Agreements and Non-Solicitation and
Confidentiality Agreements among any of the parties hereto, constitutes the entire Agreement
between Employee and Employer, with respect to the subject matter hereof, and supersedes all prior
agreements with respect thereto.
c. This Agreement may be executed in one or more counterparts, all of which, taken together,
shall constitute one and the same instrument.
d. Any notice or other communication required or permitted under this Agreement shall be
effective only if it is in writing and delivered in person or by reliable overnight courier service
or deposited in the mails, postage prepaid, return receipt requested, addressed as follows:
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To Employer:
Corporate Secretary
Centra Bank, Inc.
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▇.▇. ▇▇▇ ▇▇▇
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Centra Bank, Inc.
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With a copy to:
Corporate Secretary
Centra Financial Holdings, Inc.
Centra Financial Corporation – Morgantown, Inc.
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Centra Financial Holdings, Inc.
Centra Financial Corporation – Morgantown, Inc.
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▇.▇. ▇▇▇ ▇▇▇
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To Employee:
S. ▇▇▇▇ ▇▇▇▇▇▇
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Notices given in person or by overnight courier service shall be deemed given when delivered to the
address required by this Section 9(d), and notices given by mail shall be deemed given three (3)
days after deposit in the mails. Any party hereto may designate by written notice to the other
party in accordance herewith any other address to which notices addressed to him shall be sent.
e. The provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or enforceability of the other
provisions hereof. It is understood and agreed that no failure or delay by Employer or Employee in
exercising any right, power or privilege under this Agreement shall operate as a waiver thereof,
nor shall any single or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder.
f. The Employer shall not merge or consolidate into or with another bank or sell substantially
all its assets to another bank, firm or person until such bank, firm or person expressly agrees, in
writing, to assume and discharge the duties and obligations of the
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Bank under this Agreement. This Agreement shall be binding upon the parties hereto, their
successors, beneficiaries, heirs and personal representatives.
g. It is agreed by and between the parties hereto that, during the lifetime of the Employee,
this Agreement may be amended or revoked at any time or times, in whole or in part, by the mutual
written consent of the Employee and the Employer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year
first above written.
| CENTRA BANK, INC. |
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| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||||
| President and CEO | ||||
| CENTRA FINANCIAL HOLDINGS, INC. |
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| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||||
| President and CEO | ||||
| CENTRA FINANCIAL CORPORATION – MORGANTOWN, INC. |
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| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||||
| President and CEO | ||||
| EMPLOYEE: |
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| /s/ S. ▇▇▇▇ ▇▇▇▇▇▇ | ||||
| S. ▇▇▇▇ ▇▇▇▇▇▇ | ||||
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