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EXHIBIT 10.1
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CHANGE IN CONTROL AGREEMENT
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CHANGE IN CONTROL AGREEMENT
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TABLE OF CONTENTS
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Article Section Page
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1 Definitions 5
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2 Severance Benefits 9
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2.1 Right to Severance Benefits 9
2.2 Services during Certain Events 10
2.3 Qualifying Termination 10
2.4 Description of Severance Benefits 10
2.5 Termination for Total and Permanent
Disability 11
2.6 Termination for Retirement or Death 12
2.7 Termination for Cause or by the 12
Executive Other Than for Good Reason 12
2.8 Notice of Termination 12
2.9 Effectiveness of Agreement 12
3 Form and Timing of Severance Benefits 12
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3.1 Form and Timing of Severance Benefits 12
3.2 Withholding of Taxes 12
4 Tax Limitation Provision 13
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4.1 Limitation on Termination Payment 13
5 The Company's and the Bank's Payment
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Obligation 14
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5.1 Payment Obligations Absolute 14
5.2 Contractual Rights to Benefits 14
6 Term of Agreement 14
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7 Legal Remedies 15
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7.1 Arbitration 15
7.2 Payment of Legal Fees 15
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Article Section Page
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8 Successors 15
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9 Miscellaneous 16
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9.1 Employment Status 16
9.2 Beneficiaries 16
9.3 Entire Agreement 16
9.4 Gender and Number 16
9.5 Notices 16
9.6 Execution in Counterparts 17
9.7 Conflicting Agreements 17
9.8 Severability 17
9.9 Modification 18
9.10 Applicable Law 18
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CHANGE IN CONTROL AGREEMENT
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THIS AGREEMENT is made and entered into as of this 1st day of September,
1999, by and among WESBANCO, INC., a West Virginia bank holding company
(hereinafter referred to as the "Company"); and ______________________, a
West Virginia banking corporation and a wholly-owned subsidiary of the
Company (hereinafter referred to as the "Bank"); and ______________________
(hereinafter referred to as the "Executive").
W I T N E S S E T H:
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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
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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
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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.
(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
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(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
(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
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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.
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(m) "Effective Date of Termination" means the date on which a
Qualifying Termination occurs which triggers the payment of
Severance Benefits hereunder.
(n) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(o) "Executive" means _____________________________________.
(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
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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" 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
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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.
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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.
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:
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(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.
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
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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
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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.
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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
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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 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
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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
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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 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
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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
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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
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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
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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
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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.
Article 9. Miscellaneous
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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 ______________, 19_____, 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 ________________, 19____, 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.
17
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.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) if to the Bank:
___________________________
___________________________
___________________________
(c) if to Executive:
___________________________
___________________________
___________________________
Addresses may be changed by written notice sent to the other party at
the last recorded address of that party.
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.
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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.
IN WITNESS WHEREOF, the parties have executed this Agreement on this
1st day of September, 1999.
WESBANCO, INC.
By______________________________
Title _______________________
WESBANCO BANK ____________
By____________________________________
Title _______________________
___________________________________
EXECUTIVE